THE REGISTRANT HAS APPLIED FOR CONFIDENTIAL TREATMENT OF CERTAIN TERMS IN THIS
EXHIBIT WITH THE SECURITIES AND EXCHANGE COMMISSION. THE CONFIDENTIAL PORTIONS
OF THIS EXHIBIT ARE MARKED WITH AN ASTERISK [*] AND HAVE BEEN OMITTED. THE
OMITTED PORTIONS OF THIS EXHIBIT WILL BE FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST.
CSC CUSTOMER AGREEMENT
BY AND BETWEEN
COMPUTER SCIENCES CORPORATION
AND
THE MANUFACTURERS LIFE INSURANCE COMPANY
DATED: JUNE 30,2004.
NOTICE OF CONFIDENTIALITY
This Agreement contains confidential information. The sole owner of the
technical information included herein is Computer Sciences Corporation.
Disclosure of any information included herein to others is expressly prohibited.
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CSC CUSTOMER AGREEMENT
This CSC Customer Agreement ("Agreement") states the understanding between CSC
and Customer concerning the CSC products and services described in the Exhibits
and Work Assignments governed by this Agreement.
This Agreement shall become effective on and be dated as of June 30,2004
("Effective Date").
Throughout this Agreement the terms "CSC" refers to Computer Sciences
Corporation and each CSC Affiliate identified as "CSC" under an Exhibit or Work
Assignment governed by this Agreement, and "Customer" refers to The
Manufacturers Life Insurance Company ("MLIC") and each Affiliate identified as
the "Customer" under an Exhibit or Work Assignment governed by this Agreement.
CSC, The Manufacturers Life Insurance Company, and all Affiliates becoming
"CSC" or a "Customer" under an Exhibit or Work Assignment agree that the terms
and conditions of this Agreement are incorporated into and become a part of
each such Exhibit or Work Assignment.
CSC Customer
COMPUTER SCIENCES CORPORATION THE MANUFACTURERS LIFE
INSURANCE COMPANY
0000 Xxxxxxxxx Xxxxxxxxx 000 Xxxxx Xxxxxx Xxxx
Xxxxxx, Xxxxx 00000 Xxxxxxx, Xxxxxxx X0X 0X0
By: /s/ Xxxxxxx X. August By: /s/ Xxxx X. Xxxxxx
---------------------------- -----------------------------
(Authorized Signature) (Authorized Signature)
Name: XXXXXXX X. AUGUST Name: Xxxx X. Xxxxxx
------------------ -------------------------------
(Printed) (Printed)
Title: Executive Vice President Title: Senior Executive Vice President
---------------------------- -------------------------------
Financial Services Group
Date: 8/10/04 Date: July 30, 2004
--------------------- -------------------------------
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CSC CUSTOMER AGREEMENT................................................................... 2
GENERAL TERMS AND CONDITIONS............................................................. 7
1. STRUCTURE OF THIS AGREEMENT...................................................... 7
1.1 Benefit of Services..................................................... 7
1.2 Notice of Litigation.................................................... 7
1.3 Notice of Default....................................................... 7
1.4 Separate Contract....................................................... 7
1.5 Schedules............................................................... 8
2. DEFINITIONS...................................................................... 8
3. SOFTWARE PRODUCT LICENSES........................................................ 11
3.1 Limited License......................................................... 11
3.2 Copies.................................................................. 12
3.3 Right to Modify......................................................... 12
3.4 Back-up and Recovery.................................................... 12
3.5 Source Code Escrow...................................................... 13
4. SERVICES......................................................................... 13
4.1 Services Described in Exhibits.......................................... 13
4.2 Work Assignments........................................................ 14
4.3 Subcontracting.......................................................... 14
4.4 Regulatory Compliance................................................... 16
4.5 New Entities............................................................ 16
4.6 Operational Plans and Procedures........................................ 17
4.7 No Exclusivity.......................................................... 17
4.8 Service Volume Capacity................................................. 17
4.9 Intentionally Deleted................................................... 17
4.10 Data and Systems Security............................................... 17
4.11 Disaster Recovery and Backup............................................ 18
4.12 Help Desk Services...................................................... 18
4.13 Service Locations....................................................... 18
4.14 Facilities Security Procedures.......................................... 18
4.15 Rights of Access........................................................ 18
4.16 Incident Management..................................................... 19
4.17 Problem Management and Root-Cause Analysis.............................. 19
4.18 Cooperation With Other Service Providers................................ 19
4.19 Language Requirements................................................... 19
4.20 New Services............................................................ 19
4.21 Time and Materials Basis................................................ 20
4.22 Personnel............................................................... 20
4.23 Standard of Care........................................................ 21
4.24 Most Favoured Customer of CSC........................................... 21
4.25 Estimates............................................................... 21
4.26 Work Product............................................................ 21
4.27 Reimbursable Expenses................................................... 22
4.28 Customer's Facilities................................................... 23
5. PERFORMANCE STANDARDS............................................................ 23
5.1 Service Levels.......................................................... 23
5.2 Adjustment and Establishment of Service Levels.......................... 23
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5.3 Performance Reports................................................... 23
5.4 Performance Deficiency Response....................................... 23
5.5 Non-Performance Adjustments........................................... 24
5.6 Customer Satisfaction Surveys......................................... 24
6. MANAGEMENT..................................................................... 24
6.1 Joint Management Committee............................................ 24
6.2 Responsibilities of the Joint Management Committee.................... 25
6.3 Meetings.............................................................. 25
7. CHANGES........................................................................ 25
7.1 Changes to Scope of Obligations....................................... 25
7.2 Changes............................................................... 25
7.3 Changes - Pricing and Terms........................................... 25
8. PAYMENT TERMS.................................................................. 26
8.1 Undisputed Charges.................................................... 26
8.2 Disputed Charges...................................................... 26
8.3 Invoice............................................................... 26
8.4 Additional Information................................................ 27
8.5 Costs and Expenses.................................................... 27
8.6 Time of Payment....................................................... 27
8.7 Stale Invoices........................................................ 27
8.8 Taxes................................................................. 28
8.9 Intentionally Deleted................................................. 30
8.10 Repatriation of Services.............................................. 30
9. IMPROVED TECHNOLOGY AND GAINSHARE.............................................. 30
9.1 Improved Technology................................................... 30
9.2 Gainshare............................................................. 31
9.3 Cost Savings Gainshare................................................ 31
10. REPRESENTATIONS, WARRANTIES AND COVENANTS...................................... 31
10.1 By CSC................................................................ 31
10.2 By Customer........................................................... 35
10.3 Disclaimer of All Other Warranties.................................... 36
11. INDEMNITIES.................................................................... 36
11.1 Intellectual Property Indemnity by CSC................................ 36
11.2 Intellectual Property Indemnity by Customer........................... 37
11.3 Tort Indemnity by CSC................................................. 37
11.4 Tort Indemnity by Customer............................................ 37
11.5 Indemnification Procedures............................................ 38
11.6 Disclaimer of Other Indemnities....................................... 38
12. DAMAGES........................................................................ 38
12.1 Exclusions of Liability............................................... 38
12.2 Limitation of Liability............................................... 38
12.3 Exceptions............................................................ 39
12.4 Enforcement........................................................... 39
13. CONFIDENTIALITY................................................................ 39
13.1 Customer's Confidentiality Obligations................................ 39
13.2 Customer Confidential Information..................................... 41
13.3 Exclusions............................................................ 41
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13.4 CSC Confidential Information and Customer Confidential
Information are collectively referred to herein as "Confidential Information.".... 41
14. DEFAULTS................................................................................... 42
14.1 Default........................................................................... 42
15. TERM AND TERMINATION....................................................................... 43
15.1 Termination for Cause............................................................. 43
15.2 Termination Assistance Period..................................................... 43
15.3 Benefit of Agreement - Regulatory Control......................................... 43
15.4 Termination for Convenience....................................................... 44
15.5 Other Termination By Customer..................................................... 44
15.6 Notice of Termination............................................................. 44
15.7 Dispute Escalation................................................................ 44
16. TERMINATION ASSISTANCE..................................................................... 45
16.1 Termination Assistance Period..................................................... 45
16.2 Information and Documentation..................................................... 45
16.3 Transition Plan................................................................... 45
16.4 Continued Provision of the Services............................................... 46
16.5 Systems........................................................................... 46
16.6 Training and Consulting........................................................... 46
16.7 Payment to CSC for Termination Assistance Services................................ 46
16.8 Mitigation of Costs............................................................... 47
17. DISPUTE RESOLUTION......................................................................... 47
17.1 Good Faith......................................................................... 47
17.2 Dispute Resolution Procedures...................................................... 47
17.3 Continuation of Services........................................................... 47
18. FORCE MAJEURE.............................................................................. 48
19. TAXES...................................................................................... 49
20. ASSIGNMENT................................................................................. 49
21. GOVERNING LAW AND LANGUAGE................................................................. 49
22. NON-HlRE................................................................................... 49
23. ENTIRE AGREEMENT........................................................................... 50
24. INDEPENDENT CONTRACTOR..................................................................... 50
25. COUNTERPARTS............................................................................... 50
26. NOTICES.................................................................................... 50
27. CONSTRUCTION............................................................................... 50
28. SEVERABILITY............................................................................... 51
29. EXPORT CONTROLS............................................................................ 51
30. Third Party Beneficiaries.................................................................. 51
31. Covenant of Further Assurances............................................................. 51
32. AUDITS OF RECORDS AND DATA RELATIVE TO EXHIBITS FOR OUTSOURCING SERVICES................... 51
32.1 CSC Audit Obligations.............................................................. 51
32.2 Customer Access Rights............................................................. 52
32.3 Right to Audit..................................................................... 52
32.4 CSC Assistance..................................................................... 53
32.6 CSC Auditing....................................................................... 53
32.7 Cooperation in Audit............................................................... 54
32.8 Costs.............................................................................. 54
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32.9 Response to Audit Results.............................................. 54
32.10 Record Retention....................................................... 54
33. DATA AND PRIVACY............................................................... 55
33.1 Ownership of Data...................................................... 55
33.2 Use of Data............................................................ 55
33.3 Data Protection........................................................ 55
33.4 Transborder Data Flows................................................. 56
33.5 Data Retrieval and Return.............................................. 56
33.6 Intentionally Deleted.................................................. 56
34. BUSINESS RECOVERY PLAN RELATIVE TO EXHIBITS FOR OUTSOURCING SERVICES........... 56
35. OUTSOURCING.................................................................... 57
36. SURVIVAL....................................................................... 57
APPENDIX 1............................................................................. 58
NON-DISCLOSURE AND NON-USE AGREEMENT FOR CONSULTANT TO CUSTOMER........................ 58
APPENDIX 2............................................................................. 63
SCHEDULE A - FEES...................................................................... 64
SCHEDULE B - CUSTOMER DATA AND SYSTEM SECURITY POLICIES................................ 67
SCHEDULE C - SERVICE LOCATIONS......................................................... 92
SCHEDULE D - INCIDENT MANAGEMENT PROCEDURES............................................ 93
SCHEDULE E - PROBLEM MANAGEMENT PROCEDURES............................................. 94
SCHEDULE F - CHANGE MANAGEMENT PROCEDURES.............................................. 95
SCHEDULE G - DISPUTE RESOLUTION PROCEDURES............................................. 96
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GENERAL TERMS AND CONDITIONS
1. STRUCTURE OF THIS AGREEMENT
The Exhibits and Work Assignments to this Agreement describe specific software
products and services that CSC agrees to provide to Customer, and may contain
special terms related to particular products or services. These General Terms
and Conditions state terms that apply to all dealings between CSC and Customer
pursuant to this Agreement. If there is any conflict between a term of any
Exhibit or Work Assignment and a term of these General Terms and Conditions, the
term in the Exhibit or Work Assignment controls but only to the extent of such
conflict.
1.1 BENEFIT OF SERVICES.
CSC agrees that it will perform the Services for Customer hereunder and for each
Affiliate of Customer as specified in an Exhibit or Work Assignment. The Fees
for Services relative to CSC's Vantage One Suite of Software Products provided
to Customer and/or Customer's Affiliates shall be those set out in Schedule A
attached to this Agreement or such other fees as the parties may mutually
determine in any Exhibit or Work Assignment. Customer and Customer's Affiliates
can and may, at any time, request the use of the Services provided such request
is made through the designated Customer contact (the "Customer Designated
Contact"). The Customer shall, within ten (10) business days of the execution of
this Agreement, advise CSC of the name and contact information for the Customer
Designated Contact. Any failure of Customer to appoint a Customer Designated
Contact shall not prohibit, in any way, Customer or Customer's Affiliates from
requesting and obtaining the use of the Services.
1.2 NOTICE OF LITIGATION.
CSC shall promptly give notice to Customer of all material claims, proceedings,
notice of regulatory non-compliance from a regulatory authority, disputes
(including, labor disputes) or litigation which it reasonably believes could
have a material adverse effect on the fulfillment of any of the material terms
hereunder or under an Exhibit or Work Assignment by CSC (whether or not any such
claim, proceeding, dispute or litigation is covered by insurance) of which CSC
has actual knowledge. CSC shall provide Customer with all reasonable information
reasonably requested from time to time concerning the status of such claims,
proceedings, disputes, or litigation, and any developments relating thereto.
1.3 NOTICE OF DEFAULT.
CSC shall give Customer, and Customer shall give CSC, prompt written notice of
any default arising under any contract to which CSC or Customer is a party where
such default may have a material adverse effect on the performance of any
obligation hereunder.
1.4 SEPARATE CONTRACT.
It is understood and agreed by the parties that, unless otherwise expressly
provided in a particular Exhibit or Work Assignment, each Exhibit or Work
Assignment (as it is supplemented and amended by the terms and conditions of
this Agreement) shall be deemed a separate contract by and between Customer and
CSC. Unless the context indicates otherwise, any reference in this Agreement to
an Exhibit or Work Assignment shall, accordingly, be deemed to refer solely to
the
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relevant Exhibit or Work Assignment (and any schedules, attachments or addenda
to that particular Exhibit or Work Assignment), as supplemented and amended by
the terms and conditions of this Agreement. For so long as any Exhibit or Work
Assignment remains in effect, the terms and conditions of this Agreement shall
continue to remain in effect with respect to the Services covered by said
Exhibit or Work Assignment.
1.5 SCHEDULES.
Schedule A, Schedule B, and Schedule G, set out below, are annexed hereto as
part of this Agreement. Schedules C through F set out below are annexed hereto
as examples only and may be adopted for a particular Exhibit or Work Assignment
by mutual written agreement of CSC and Customer. For any New Services, an
Exhibit or Work Assignment may also include any or all of the following
schedules, amended as necessary, or additional schedules applicable to that
Exhibit or Work Assignment as agreed to by the parties:
SCHEDULE DESCRIPTION
---------- ----------------------------------------
Schedule A Fees
Schedule B Customer Data and System Security Policy
Schedule C Service Locations
Schedule D Incident Management Procedures
Schedule E Problem Management Procedures
Schedule F Change Management Procedures
Schedule G Dispute Resolution Procedures
2. DEFINITIONS
This Section defines some capitalized terms used in this Agreement.
"Affiliate" means any "Subsidiary" or "Parent" or "Sister" of CSC or Customer.
As used herein, "Subsidiary" means a company that either CSC or Customer
manages, controls, and majority owns, directly or indirectly; "Parent" means a
company that manages, controls, and majority owns CSC or Customer, directly or
indirectly; "Sister" means a company that Parent manages, controls, and majority
owns, directly or indirectly. For purposes of the foregoing definition, control
means the ability to select the board of directors or officers of the controlled
company and ownership means beneficial ownership of the issued and outstanding
capital stock of the owned company.
"Agreement" means this CSC Customer Agreement as it may be amended from time to
time, including all Exhibits and Work Assignments this Agreement is incorporated
into.
"Applicable Laws" means all statutes, by-laws, regulations, ordinances, orders,
regulatory requirements and guidelines, and requirements of governmental or
other public authorities having jurisdiction over this Agreement, any Exhibit or
Work Assignment and the parties hereto, and all amendments thereto, at any time
and from time to time in force.
"CSC Confidential Information" means the information described in Section 13.1.
"Change" has the meaning ascribed thereto in Section 7.2.
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"Conclusion Date" means the later of the date on which:
(i) all Termination Assistance Services cease to be provided in
accordance with this Agreement; and
(ii) all provision of Services under an Exhibit, Work Assignment or this
Agreement has been terminated
"Customer Confidential Information" means the information described in Section
13.2.
"Customer Data" means any and all data and information provided or made
available to, or produced by, CSC pursuant to or in connection with an Exhibit,
Work Assignment or this Agreement for the purposes of processing or otherwise in
the performance of this Agreement, directly or indirectly, and including
Customer Information, and whether in printed, electronic, magnetic, optical or
other form.
"Customer Data and System Security Policies" means the data and system security
policies, procedures and standards set out in Schedule B.
"Customer Information" means any non-public, personally identifiable information
about customers or prospective customers of Customer that is provided or made
available to, or produced by, CSC hereunder, including medical or health
information, the names and addresses of customers or prospective customers and
particulars about any policies entered into by such persons.
"Default" has the meaning ascribed thereto in Section 14.1.
"Derivative Works" has the meaning ascribed thereto in Section 4.26B.
"Dispute" has the meaning ascribed thereto in Section 17.1.
"Documentation" means the formal documentation provided in any medium by CSC
with a Software Product licensed by Customer as updated by CSC from time to
time.
"Fees" has the meaning ascribed thereto in Schedule A or as otherwise set out in
an Exhibit or Work Assignment.
"Force Majeure Event" has the meaning ascribed thereto in Section 18(a)(iii).
"Gainshare Proposal" has the meaning ascribed thereto in Section 9.2.
"Incident Management Procedures" means the problem alert and escalation
procedures set out in Schedule D, as may be modified from time to time in
accordance with the terms hereof.
"Investment Costs" means the unrecoverable investment costs actually incurred by
CSC identified in an Exhibit or Work Assignment and shall in no event include
fees or costs related to loss of expected revenue, savings or profit.
"Joint Management Committee" has the meaning ascribed thereto in Section 6.1.
"New Services' has the meaning ascribed thereto in Section 4.20.
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"Non-Performance Adjustments" means the amounts calculated and to be deducted
from the Fees or paid to Customer in accordance with any Exhibit in respect of
failure or failures of CSC to meet the Service Levels.
"Performance Deficiency" means any failure by CSC to perform Services in
accordance with the Service Levels.
"Person-day" means the services of one person for one normal eight-hour workday.
"Person-hour" means the services of one person for one full hour.
"Privacy Laws" has the meaning ascribed thereto in Section 33(c).
"Problem" has the meaning ascribed thereto in Section 4.16.
"Problem Management Procedures" means the problem management procedures set out
in Schedule E, as may be modified from time to time in accordance with the terms
hereof.
"Service Levels" means the service levels and System performance standards set
out in any Exhibit, as such service levels and System performance standards may
be determined or adjusted from time to time in accordance with Section 7.2 and
Change orders issued hereunder.
"Service Locations" means the CSC sites (including those of its permitted
subcontractors, if any) from which Services are provided and "SERVICE LOCATION"
means any one of them.
"Services" means:
(i) the services described in any Exhibit or Work Assignment;
(ii) those services and functions otherwise specifically identified in
this Agreement as being part of the Services;
(iii) any New Services; and
(iv) all changes, modifications, reductions of or additions to the
Services pursuant to Change orders issued hereunder.
"Services Systems" means all of the Software Products used in providing Services
to Customer, including, but not limited to, the Vantage-One and JETS Software
Products.
"Software Product" means any computer software package or software-related
methodology owned or marketed by CSC, and includes all computer code (whether
machine readable or human readable), Documentation, and related materials
identified by CSC as part of the package.
"Standard Time and Materials Rates" for Person-hours and computer usage means
the rates stated on CSC's published rate schedule. "Standard Time and Materials
Rates" for Person-days means the Person-hour rate multiplied by 8. "Standard
Time and Materials Rates" for materials means the rates stated on CSC's
published rate schedule, if any, and otherwise at CSC's actual cost for the
materials. CSC may revise its rates at any time, but not more than once per
annum, by delivering a new rate schedule to Customer. The new rate schedule will
take effect on delivery to Customer, but will not apply to Work Assignments
signed before it is delivered to Customer unless otherwise agreed.
"Term" has the meaning ascribed thereto in Section 15.1.
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"Termination Assistance Period" has the meaning ascribed thereto in Section
16.1.
"Termination Assistance Services" means the services specified in Article 16,
including those specified in the Transition Plan, to be part of the Termination
Assistance Services.
"Termination for Convenience Fees" means those fees specified in an Exhibit or
Work Assignment and which are limited to Wind Down Costs and Investment Costs
actually and reasonably incurred by CSC and shall in no event include fees or
costs related to loss of expected revenue, savings or profits, unless otherwise
agreed to by the Parties in the appropriate Exhibit or Work Assignment.
"Termination Date" means the date on which any notice of termination hereunder
becomes effective to commence the Termination Assistance Period by expiry of the
period of notice provided either;
(i) herein; or
(ii) in the applicable notice of termination.
whichever is longer.
"Time and Materials Basis" means the service arrangement described in Section
4.21.
"Transition Plan" has the meaning ascribed thereto in Article 16.
"Vantage One Suite of Software Products" means CSC's Vantage One, DSS, RPS,
Performance Plus, Jets, and VPMS Software Products, and any updates thereto.
"Wind Down Costs" means the wind down costs actually incurred by CSC which shall
in no event include fees or costs related to loss or expected revenue, savings
or profits.
3. SOFTWARE PRODUCT LICENSES
3.1 LIMITED LICENSE.
When Software Products are licensed to Customer under this Agreement, they shall
be provided by way of Exhibits to this Agreement and Customer shall receive a
license, as described herein and in the Exhibits, to use those Software Products
expressly identified in such Exhibits. Except as otherwise described in this
Agreement or an Exhibit, no title, ownership, or intellectual property rights
are transferred to Customer. Customer shall keep each and every item to which
CSC retains title free and clear of all claims, liens, and encumbrances except
those of CSC. Any act of Customer, voluntary or involuntary, purporting to
create a claim, lien, or encumbrance on such an item shall be void. Licenses are
conditioned on compliance with all terms of this Agreement by Customer. Customer
may use Software Products expressly licensed to Customer only in the manner and
for the purposes expressly authorized by this Agreement or the applicable
Exhibit. Unless CSC otherwise expressly agrees in an Exhibit, Customer may not
use or permit the use of the Software Products through, for, or on the behalf of
any third party, including as part of a service bureau or outsourcing offering
or arrangement for such third party. CSC reserves all rights not expressly
granted to Customer.
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3.2 COPIES.
Customer may make copies of any Software Product licensed to Customer as
reasonably necessary to exercise the license granted to Customer. All copies of
and intellectual property rights in Software Products, including translations,
adaptations, compilations, partial copies within other software, upgrades,
corrections, modifications, enhancements, and Derivative Works, whether made by
Customer or CSC or a third party, shall be the property of CSC and subject to
the terms of Customer's license to the Software Products. To the extent that
such ownership does not vest in CSC by operation of law, Customer hereby assigns
such ownership to CSC, unless CSC and Customer agree in a Work Assignment that
Customer should retain all or a portion of such ownership. Customer shall
reproduce CSC's copyright, trade secret and other proprietary notices on all
such copies. During normal business hours, CSC may enter upon Customer's
premises and inspect documents, data, and software in order to review compliance
with the provisions of this Agreement.
3.3 RIGHT TO MODIFY.
Customer may access Software Product Documentation, logic, programs, and
procedures for the purpose of Customer performing research, analysis,
modification, enhancement and maintenance of any Software Product licensed to
Customer under an Exhibit to support Customer's authorized use of the Software
Product if CSC delivers source code as part of the Software Product. Customer
may exercise this right using acceptable third party service providers engaged
by Customer under the provisions of Section 13.1(a)(iii) of this Agreement.
Customer agrees that all changes become the property of either CSC or Customer
as provided by Section 4.26 of this Agreement. In the event that CSC is at the
time providing Services to Customer, if Customer alters a Software Product or
any logic, programs or procedures used or employed by CSC in performing its
duties and obligations hereunder, Customer agrees to abide by documentation,
methodologies and development standards consistent with CSC's practices and to
provide documentation to CSC prior to installation, and Customer agrees to
provide CSC the right to perform a design review and approve all changes prior
to installation, such approval to be completed within a reasonable time and will
not be unreasonably withheld by CSC. Methodologies and development standards are
to be consistent with the Systems Engineering Institute Capability and Maturity
Model Level II. Where requested by Customer, CSC's costs associated with
investigating problems caused by Customer's changes, installation or support of
Customer changes will be paid to CSC on a Time and Materials basis. In the event
Customer's changes result in a lack of system availability, the provisions in
the applicable Exhibit relating to the payment of service level credits by CSC
for system unavailability shall not apply.
Customer shall not modify, enhance, reverse engineer, delink, disassemble, or
decompile any Software Product delivered in object code only. CSC is not
responsible for and shall have no liability related to any modification or
enhancement performed by or on behalf of Customer, or the compatibility of any
software or service with such modification or enhancement, unless CSC explicitly
agrees in writing, signed by an authorized representative, to incorporate such
modification or enhancement as part of the base version of a Software Product.
3.4 BACK-UP AND RECOVERY.
The Exhibit for each Software Product licensed to Customer specifies where
Customer may use that Software Product. If any facility specified in that
Exhibit becomes inoperable, Customer may use the Software Product temporarily at
a back-up facility until use of the original facility is restored.
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Customer may also use the Software Product in a non-productive mode to test the
use of such a back-up facility. Customer may change the data center to another
Customer facility located in Canada, United States, United Kingdom, or Japan
("Approved Areas") as a back-up facility. However, Customer must always seek the
prior written consent of CSC for any transfer of a Software Product to another
location outside of the Approved Areas; CSC agrees it will not withhold its
consent to change to another facility outside of the Approved Areas unless CSC
has reason to believe the confidentiality of the Software Product will be
compromised. Customer shall keep accurate records of all locations at which any
of the Software Products are installed, and shall provide such records to CSC
upon request. This Section 3.4 does not permit any third party back-up facility
provider to copy, use, or access a Software Product or any information that is
confidential pursuant to Article 13 of this Agreement. Customer shall indemnify
CSC against any and all damages or losses caused by an unauthorized use or
disclosure of the Software Product or any CSC Confidential Information by a
third-party owner or operator of a back-up facility used by Customer under this
Section.
3.5 SOURCE CODE ESCROW.
If any Exhibit provides for an escrow of the source code for all or part of a
Software Product, Customer's license to the Software Product shall include the
right to use the source code for such Software Product in accordance with the
license granted in this Agreement, upon release of such source code pursuant to
the applicable escrow agreement. The conditions for the release of the source
code from escrow shall include release (a) upon a material breach by CSC of any
ongoing support or maintenance obligations for the Software Product, which
remains uncured after sixty days, (b) upon CSC discontinuing maintenance or
support for the Software Product, (c) upon CSC, or any permitted successor or
assign, making a general assignment for the benefit of creditors and such
assignment results in a termination of maintenance and support services or a
material breach or default of the maintenance and support obligations to
Customer, (d) upon the appointment by a court of a trustee or receiver of any
substantial part of CSC's (or a permitted successor's or assign's) assets and
such appointment results in a termination of maintenance and support services or
a material breach or default of the maintenance and support obligations to
Customer, (e) upon CSC, or any permitted successor or assign, ceasing to
function as a going concern and there is no successor or assign to carry on the
business, and (f) upon CSC, or any permitted successor or assign, filing a
petition in bankruptcy or having such a petition filed against it and which is
acquiesced in or is not dismissed within thirty (30) days or results in an
adjudication of bankruptcy.
4. SERVICES
4.1 SERVICES DESCRIBED IN EXHIBITS.
CSC offers a variety of services that may be described in Exhibits to this
Agreement. These may include utilization and support services for licensed
Software Products, data processing services, education services, specialized
consulting services, and a wide variety of other services. Subject to Customer's
written consent, which shall not be unreasonably withheld, CSC may provide all
or part of the services through any other affiliate or subsidiary of CSC and may
xxxx Customer for such services through such affiliate or subsidiary. All
references to services provided by CSC in this Agreement and in any Exhibit
shall include services provided to Customer through any of CSC's affiliates or
subsidiaries.
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4.2 WORK ASSIGNMENTS.
CSC and Customer may also agree to a service arrangement by signing a Work
Assignment that references this Agreement. Each Work Assignment will describe
the work to be done, the term of the Work Assignment, and any special provisions
applicable to the project. Subject to Customer's written consent, which shall
not be unreasonably withheld, CSC may provide all or part of the services
through an affiliate or subsidiary of CSC and may xxxx Customer for such
services through such affiliate or subsidiary. All references to services
provided by CSC in this Agreement and in any Work Assignment shall include
services provided to Customer through any of CSC's affiliates or subsidiaries.
4.3 SUBCONTRACTING.
(a) General Prohibition
CSC shall not delegate or subcontract any of its material obligations
relating to the Services to any Person. Notwithstanding the foregoing, CSC
may use, in the ordinary course of business, a third party Subcontractor
or products pursuant to subcontracts if it follows the procedure set out
in this Section 4.3. Customer pre-approves CSC's subcontract with
Affiliated Computer Services, Inc., and any other subcontractor CSC is
using to provide the Services for Customer on or before the effective date
of this Agreement.
(b) Notice of subcontracting and when Customer approval is required
If CSC subcontracts any of its obligations under this Agreement, an
Exhibit or Work Assignment, CSC must promptly notify Customer in writing
of the details of that subcontract. However, CSC will not be required to
disclose to Customer any pricing information in relation to that
subcontract (other than the information reasonably required by Customer to
demonstrate the value of the subcontract).
CSC must obtain Customer's prior written approval before it subcontracts
any of its obligations under this Agreement in the following
circumstances:
(i) the subcontract has a total actual or anticipated value of
more than US$1,000,000 per annum (unless the subcontract is
for the provision of goods or services to CSC for the benefit
of a substantial proportion of CSC's customer base); or
(ii) the subcontract will result in a material change in the way
that CSC provides the Services and that is strategically
important to Customer's business and will result in a material
reduction in the performance levels of such Service,
(together known as a "MATERIAL SUBCONTRACT").
If CSC desires to enter into a Material Subcontract with a subcontractor,
CSC will submit to Customer in writing a proposal specifying:
(i) the specific tasks CSC proposes to subcontract;
(ii) the reason for having a subcontractor perform such tasks
instead of CSC;
(iii) the identity and qualifications of the proposed subcontractor;
and
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(iv) any other information reasonably requested by Customer or
relevant to Customer's approval of the subcontractor.
(c) Approved and identified Subcontractors
(i) Once a Subcontractor has been approved by Customer in
accordance with Section 4.3, that Subcontractor will be an
Approved Subcontractor (but only for the purpose of the
subcontract in relation to which Customer has provided its
approval).
(ii) CSC will give Customer prior written notice before terminating
an Approved Subcontract.
(d) Terms of subcontract
(i) For each subcontract where Customer's approval is required
under Section 4.3, CSC must enter into a written subcontract
and warrants that the terms of that subcontract are consistent
with, and include obligations no less onerous than those
contained in this Agreement in relation to the Services to be
performed by the proposed Subcontractor.
(ii) CSC will attempt to get an Approved Subcontractor to agree to
consent to a novation of the subcontract and grant a power of
attorney in favour of Customer that allows Customer to execute
such documents necessary to give effect to the novation
thereof if an Exhibit or Work Assignment is terminated in
whole or in respect of the part related to the subcontract.
(e) Replacement
Customer may direct CSC to replace a Subcontractor in respect of whom
Customer's approval is required under Section 4.3 on reasonable grounds,
which include the following:
(i) if CSC is in breach of its material obligation under this
Agreement, an Exhibit or Work Assignment due to an act or
omission of the Subcontractor;
(ii) if Customer is not reasonably satisfied with the
Subcontractor's ability to render future performance (provided
Customer provides CSC with reasonable notice);
(iii) if the Subcontractor fails to comply in any material respect
with any of its obligations under its subcontract;
(iv) if the Subcontractor assigns or delegates performance of its
obligations under the subcontract to another party that is not
approved by Customer to the extent required under Section 4.3;
(v) if there have been material misrepresentations by the
Subcontractor or by the CSC concerning the Subcontractor;
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(vi) if the Subcontractor or any of its personnel is reasonably
suspected of or breaches confidentiality obligations to
Customer or CSC in relation to Customer Confidential
Information, or privacy obligations;
(vii) infringes or prejudices any of Customer's Intellectual
Property Rights or any rights Customer may have in any third
party's intellectual property.
(f) Prime contract responsibility
(i) Any approval or removal under this Section will not relieve
CSC from any of CSC's obligations under this Agreement, an
Exhibit or Work Assignment.
(ii) CSC remains fully responsible and liable for all obligations,
services and functions performed by any Subcontractors
(whether approved or not) to the same extent as if those
obligations, services and functions were performed by CSC.
(iii) CSC will be Customer's sole point of contact regarding the
Services, including with respect to payment.
(iv) If a Subcontractor breaches, or is alleged to have breached, a
Material Subcontract, CSC will notify Customer in writing and
provide Customer with such information relating to the breach
or alleged breach (as the case may be) as Customer may
reasonably request.
4.4 REGULATORY COMPLIANCE.
(a) CSC acknowledges that Customer is a Canadian federally regulated
financial institution and, among other regulatory responsibilities,
is required to adhere with the Office of the Superintendent of
Financial Institutions ("OSFI") Guideline B-10 entitled "Outsourcing
of Business Functions by FRFI's", as amended from time to time, and
any other similar guidelines or policies implemented by OSFI from
time to time.
(b) In the event that OSFI (or any successor thereto or other regulator
or Customer) requires that Customer make changes to the terms of
this Agreement in order to comply with any regulations or guidelines
or legal changes having jurisdiction over Customer, CSC agrees that
it shall cooperate fully with Customer to make such changes and
amendments to this Agreement as are reasonably necessary in order to
ensure Customer's compliance with such regulations or guidelines.
Customer agrees that it shall notify CSC of any legal change of
which it becomes aware relating specifically to regulated financial
institutions and the provision of the Services and to make any
necessary requests for Change pursuant to Article 7.
4.5 NEW ENTITIES.
If Customer or any of its Affiliates acquires a controlling interest (directly
or indirectly, by way of acquisition of assets or shares, merger, amalgamation,
or otherwise) in any enterprise(s) during the Term, or if Customer merges with
or is acquired by another enterprise, whether by way of acquisition of assets or
shares, amalgamation or otherwise, CSC shall, if requested by
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Customer, use its commercially reasonable efforts to provide services similar to
the Services for such new enterprise(s) as soon as reasonably practical
following the acquisition by or of or merger with Customer, subject to agreement
on a Change order relating thereto.
4.6 OPERATIONAL PLANS AND PROCEDURES.
At all times during the Term, CSC shall maintain reasonable comprehensive and
up-to-date documentation describing in detail network topologies, System
configurations, methods of operation and procedures specifically relating to the
performance of the Services and to the Services Systems. CSC shall, at the
request of Customer, provide access to and reasonable explanation of such
documentation to Customer. CSC will deliver copies of such documentation in
CSC's possession on the Termination Date to Customer, provided Customer has been
granted a license therefor under an Exhibit to this Agreement. If the
documentation is intermingled with other CSC customers' documentation,
Customer's request for access or copies of the same shall be governed by the
Change procedures pursuant to Article 7.
4.7 NO EXCLUSIVITY.
(a) The parties acknowledge and agree that, unless expressly set forth
in an Exhibit or Work Assignment, no rights or obligations of
exclusivity are created hereunder in favour of either party and, for
greater certainty, that nothing contained in this Agreement shall
restrict or prevent Customer from entering into agreements with
other persons concerning any commercial transactions, including any
acquisition of technology, products or services which are similar
to, or related to, the technology, products and/or services provided
by CSC as part of the Services.
(b) CSC agrees that it shall, subject to Section 13.1(a)(iii), at the
request and expense of Customer, cooperate with and provide all
reasonably requested assistance and support to Customer and such
third party retained by Customer in connection with any such
acquisition and implementation of technology, products or services
to the extent that same are related to the Services, and including
all required technical information, documentation, specifications
data reasonably necessary to enable such third party to implement
technology, products or services.
4.8 SERVICE VOLUME CAPACITY.
CSC shall at all times ensure that the Services Systems are sufficient to meet
Customer's anticipated Service volume requirements. Subject to the completion of
a Change order by the Parties, Customer shall be entitled to increase the volume
to Service transactions at any time throughout the Term.
4.9 INTENTIONALLY DELETED.
4.10 DATA AND SYSTEMS SECURITY.
As part of the Services, CSC agrees that it shall follow the latest steps and
security precautions practiced in the software industry designed to prevent or
stop the unauthorized access to, or sabotage of, the Services Systems that are
used by CSC to perform the Services. CSC shall immediately notify Customer of
any unauthorized use of, or unauthorized access to, the Customer Data or
Services Systems. CSC agrees to conform to CSC's data and software
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security policies that are substantially comparable to Customer's Customer Data
and System Security Policies set out in Schedule B hereto provide such Schedule
B policies are applicable to the Services being provided by CSC for Customer
pursuant to a relevant Exhibit or Work Assignment.
4.11 DISASTER RECOVERY AND BACKUP.
As part of the Services, CSC shall perform the disaster recovery, back-up and
data storage services as described in the provisions of any Exhibit or Work
Assignment.
4.12 HELP DESK SERVICES.
As part of the Services, CSC shall comply with and perform the help desk service
obligations specified in any Exhibit or Work Assignment.
4.13 SERVICE LOCATIONS.
(a) The Services Systems used in providing the Services shall be located
at the Service Locations set out in Schedule C or at such other
locations as may otherwise be determined by CSC from time to time.
CSC will give Customer prior written notice for any Service Location
changes.
(b) The Service Locations shall not be changed without the prior written
notice to Customer. The Customer Data shall at all times remain at
one of the Service Locations, except for back-up or contingency
recovery purposes as may be expressly specified in any Exhibit or
Work Assignment, or as otherwise approved by Customer in writing.
(c) CSC shall promptly notify Customer of any unauthorized access to a
Service Location (or Customer Data) and, as soon as is practicable,
provide to Customer a detailed incident report in respect thereof,
which shall be in form and content mutually acceptable to Customer
and CSC.
4.14 FACILITIES SECURITY PROCEDURES.
As part of the Services, CSC shall, at each of the Service Locations, implement,
maintain and enforce comprehensive and appropriate security standards and
procedures restricting access to the Service Locations.
4.15 RIGHTS OF ACCESS.
(a) CSC shall, once per year or as otherwise agreed by CSC and Customer,
and payment to CSC at the time and materials rates set forth on
Schedule A hererto, permit during normal business hours and subject
to CSC's reasonable security requirements, access to the Service
Locations, to personnel involved in providing the Services, to
operational logs relating to the Services and the Services Systems
for the purpose of verifying the compliance by CSC with its
obligations under an Exhibit, Work Assignment or this Agreement in
accordance with the audit provisions set out in this Section 4.15
and more particularly in Article 32.
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(b) In addition to Section 4.15(a) above, Customer's internal personnel
and technical staff and, subject to Section 13.1 (a)(iii) of this
Agreement, Customer's external professional advisors, regulators and
technical staff shall have access to the Service Locations to assist
CSC, as Customer, acting reasonably, determines necessary in the
event that (i) the termination assistance provision of Article 16
are triggered, (ii) in the opinion of Customer, CSC is or would be
unable to recover failed services as per the service level
agreements in this Agreement or any Exhibit or Work Assignment,
(iii) there are service performance issues affecting Customer's
business operations, and (iv) as required by OSFI or any other
regulator of Customer.
4.16 INCIDENT MANAGEMENT.
(a) From and after the Effective Date, CSC shall, in respect of any
events, occurrences, errors, deficiencies, defects, interruptions or
malfunctions in the Services Systems or Services (a "PROBLEM"),
implement, maintain and comply with the Incident Management
Procedures set out in Schedule D, which CSC and Customer may
mutually agree, acting reasonably, to modify from time to time.
(b) CSC will work diligently to resolve any Problem and to avert or
minimize any adverse effect such Problem may have, including finding
a way to work around such Problem. If more than one Problem arises
or occurs at one time, Customer's Joint Management Committee
representatives shall determine in consultation with CSC, and notify
CSC as to, the order of priority in which such Problems shall be
addressed and resolved. From the time that CSC first becomes aware
of a Problem or Problems, CSC shall consult with Customer regarding
efforts to resolve the Problem and developments in respect thereof.
4.17 PROBLEM MANAGEMENT AND ROOT-CAUSE ANALYSIS.
From and after the Effective Date, CSC shall, in respect of the resolution of
Problems, implement, maintain and comply with the Problem Management Procedures
set out in Schedule E, which CSC and Customer may mutually agree, acting
reasonably, to modify from time to time.
4.18 COOPERATION WITH OTHER SERVICE PROVIDERS.
CSC shall, acting reasonably and in good faith, cooperate with and assist any
other person which provides services to Customer that is, either directly or
indirectly, operationally, technologically or managerially related to the
Services including for greater certainty, IBM Canada Limited and any Affiliate
or Subsidiary thereof.
4.19 LANGUAGE REQUIREMENTS.
All Services, Reports and any related communications and documentation, must be
provided by CSC in the English language or another language, as required or
designated by Customer and identified in advance in an Exhibit or Work
Assignment.
4.20 NEW SERVICES.
(a) During the Term, Customer may request that CSC provide certain
consulting, development or enhancement work or managed services to
Customer that are
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reasonably related to the provision of the Services but do not
constitute a Change ("New Services").
(b) Any New Services agreed to by CSC pursuant to a request made by
Customer in accordance with this Section 4.20 shall be as described
in an Exhibit or Work Assignment prepared by and mutually agreed to
by the parties. The Exhibit or Work Assignment shall contain, unless
the parties agree otherwise, a description of the services to be
conducted, the functional requirements and technical specifications
applicable to the services, the services schedule and milestones,
the deliverables and delivery schedule, acceptance criteria, and any
other information that might be specified. The Exhibit or Work
Assignment also may contain additional terms and conditions as may
be mutually agreed by the parties. Upon the completion and execution
of the Exhibit or Work Assignment by each party, the Exhibit or Work
Assignment shall be attached hereto and form a part of this
Agreement.
(c) Any New Services related to CSC's Vantage One suite of Software
Products, shall be provided by CSC based on the rates set out in
Schedule A, unless otherwise agreed to by the parties in an Exhibit
or Work Assignment.
(d) CSC agrees that it shall consider all Customer requests to provide
New Services and shall, in good faith, use reasonable efforts to
perform any such New Services on terms and conditions that are fair
and reasonable and that are consistent with the terms and conditions
of this Agreement. Any New Services provided by CSC shall, unless
expressly otherwise provided for in the applicable Exhibit or Work
Assignment, be subject to the terms and conditions of this
Agreement.
4.21 TIME AND MATERIALS BASIS.
If a Work Assignment or Exhibit states that services will be provided on a "Time
and Materials Basis," CSC's charges for the services will be determined by the
amount of CSC personnel time, computer time, and materials used in providing the
services, plus reimbursable expenses (in accordance with Customer's expense
guidelines as may from time to time be provided to CSC by Customer), rather than
by the results achieved. Services may be billed by the Person-hour, the
Person-day, or any other unit agreed on by CSC and Customer. Services will be
provided on a Time and Materials Basis and billed by the Person-hour at the Time
and Materials Rates set forth in the controlling Work Assignment or Exhibit.
4.22 PERSONNEL.
CSC will try to accommodate Customer's requests concerning assignment of
personnel to Customer's projects, but CSC reserves the right to determine the
assignment of its personnel. Customer acknowledges that CSC's project managers
require discretion and flexibility to create and maintain balance and alignment
between Customer's stated timeline and cost objectives and CSC's management of
personnel. Customer will have the right to request in writing that any personnel
assigned by CSC to perform services at Customer's site be removed and replaced.
In the event of unprofessional conduct (including abusive behavior, dishonesty,
harassment, or other circumstances which contravene Customer's Code of Business
Conduct and the policies referenced therein, copies of which shall be provided
to CSC) or gross non-performance, the removal will be immediate. In the event of
work-related deficiency in performance, other than gross non-performance, CSC
will have the opportunity to correct the deficient activity by developing an
improvement plan for the affected personnel and resolving the deficiency to
Customer's reasonable satisfaction within a thirty
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(30) day period of such written notice. Otherwise, upon such a request,
representatives of CSC and Customer will meet to discuss Customer's request; if
CSC agrees with Customer's request, CSC will remove the employee from the
project. CSC shall use commercially reasonable efforts to ensure that the
Services of the replacement personnel shall be provided in accordance with any
time schedule set forth in any applicable Exhibit or Work Assignment.
4.23 STANDARD OF CARE.
INTENTIONALLY DELETED.
4.24 MOST FAVOURED CUSTOMER OF CSC.
CSC agrees that CSC will treat Customer as one of CSC's most favored insurance
customers. CSC represents that all of the prices, terms, warranties and benefits
granted by CSC hereunder in the aggregate are comparable to or better than the
prices, terms, warranties and benefits previously offered to any other
comparable insurance customer of CSC, the comparability of customers taking into
account the time at which such offers were made and having regard, without
limitation, to the nature, service level performance requirements, volume,
revenue and other applicable terms and conditions concerning the provision of
such services. If, during the term of this Agreement, CSC shall enter into
arrangements with any other comparable insurance customer providing such
customer more favorable terms, CSC shall notify Customer of such terms and this
Agreement shall thereupon be deemed amended to provide the same terms to
Customer for any subsequent purchases of goods and services by Customer from
CSC.
4.25 ESTIMATES.
If CSC provides Customer with an estimate of the cost or time frame for any
services to be provided by CSC, the estimate will be made in good faith based on
the information known to CSC. However, CSC DOES NOT PROMISE THAT ESTIMATES WILL
BE ACCURATE, and estimates are not intended as price or performance guarantees.
4.26 WORK PRODUCT.
A. CSC shall be the owner and copyright holder of all work product that results
from services performed by CSC for Customer (called "CSC Work Product"),
including but not limited to, program code, Documentation, specifications,
logic, and design. CSC grants Customer a non-exclusive license to use all CSC
Work Product delivered to Customer. Customer's license to any CSC Work Product
that relates to a particular Software Product shall be the same as Customer's
license to that Software Product. Customer's license to any other CSC Work
Product will be a non-exclusive, worldwide, paid-up license to use such CSC Work
Product for the day-to-day business needs of Customer, excluding use on the
behalf of any third party, including as part of a service bureau or outsourcing
offering or arrangement for such third party, unless CSC otherwise expressly
agrees in a Work Assignment.
B. Notwithstanding anything to the contrary in Section 4.26A above, if Customer
contracts with CSC for the development of particular CSC Work Product solely for
Customer and solely at Customer's expense (but specifically excluding any
"Derivate Works" of a Software Product), the parties may agree in the Work
Assignment in advance of the commencement of work that either: (a) CSC would
grant Customer title to the computer code and documentation comprising such CSC
Work Product; or (b) the grant of any other licenses to the particular CSC Work
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Product would be subject to an agreed upon royalty to Customer. The term
"Derivative Work" shall mean any materials or computer programs based upon the
Software Products prepared by CSC, Customer or by an Affiliate or third party
contractor at the direction of Customer including any translations,
reproductions, abridgements, condensations or any other form in which the
Software Products, or any part thereof, may be recast, transformed, adopted,
revised or modified. Unless the parties otherwise agree in writing, CSC shall be
entitled to use the ideas and concepts contained in such CSC Work Product and to
develop similar work product for other clients or for CSC's own use, provided
that no Customer Confidential Information (as defined in Section 9.2 below) is
disclosed or used thereby. To the extent that the services CSC performs include
the provision of third party products, or services, Customer's rights to such
products or services (including licenses, warranties, and indemnities) shall be
those rights that CSC is authorized to pass through to Customer and shall be
subject to any conditions on such rights (such as confidentiality and
limitations of liability). CSC shall use its best efforts to obtain those rights
to such third party products or services (including licenses, warranties, and
indemnities) as are customarily available to customers of such products or
services. Subject to the foregoing, CSC shall have no liability whatsoever with
respect to any such third party products or services. To the extent required by
a license agreement between Customer and Customer's third party licensor, CSC
shall, at Customer's request, assign to Customer or Customer's third party
licensor such of the CSC Work Product as is, upon creation, either a derivative
work of materials copyrighted by Customer's third party licensor or information
that CSC has agreed in writing is confidential to Customer's third party
licensor. CSC shall not assign any work product not created as part of services
performed by CSC for Customer. CSC shall not assign any materials that this
Section does not require to be assigned as of its creation even if such
materials are later included in CSC Work Product that this Section requires to
be assigned. If CSC Work Product includes materials that this Section requires
to be assigned and materials this Section does not require to be assigned, CSC
may separate the assigned portion from the non-assigned portion. If any CSC Work
Product can reasonably incorporate all or any portion of work product that
resulted from the services CSC performed for an Affiliate of Customer
("Affiliate Work Product"), then the Affiliate Work Product shall be included in
the CSC Work Product at no additional charge to Customer, except for such
charges, if any, as are necessary to actually incorporate the Affiliate Work
Product. If all or any portion of the Affiliate Work Product is to be
incorporated in CSC Work Product, then the Work Assignment that contemplates the
relevant CSC Work Product shall specify the Affiliate Work Product to be
included in the CSC Work Product and shall reflect that it is provided to
Customer at no charge.
C. If Customer develops a modification to the Software Product that is not a
Derivative Work of a Software Product (a "Customer-Specific Modification"),
Customer shall notify CSC of such Customer-Specific Modification to enable the
parties to identify the same. The parties agree that Customer-Specific
Modifications shall be the sole property of Customer, and to the extent required
to perfect Customer's title in Customer-Specific Modifications, at Customer's
expense, CSC agrees to assign to Customer any rights or title CSC may have in or
to any such Customer-Specific Modifications.
4.27 REIMBURSABLE EXPENSES.
INTENTIONALLY DELETED.
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4.28 CUSTOMER'S FACILITIES.
From time to time, Customer may provide CSC with access to or use of its
facilities or any third party facilities necessary for CSC to enforce its rights
or perform its obligations hereunder (including offices, hardware, software, and
other assets owned, leased, or licensed by Customer and third party services
provided to Customer). Such access shall be at no charge to CSC, and to the
extent that any third party charges CSC for such access, Customer shall
reimburse CSC for such expenses.
5. PERFORMANCE STANDARDS
5.1 SERVICE LEVELS.
At all times during the Term, CSC shall provide the Services in accordance with
the Service Levels, as set out in any Statement of Work as may be revised from
time to time in accordance with the provisions hereof.
5.2 ADJUSTMENT AND ESTABLISHMENT OF SERVICE LEVELS.
The patties shall review, during the last ninety (90) days of each Contract
Year, the Service Levels as set out in any Exhibit or Work Assignment for the
preceding twelve (12) month period. In respect of any Service Levels that
require adjustment or are no longer appropriate for any reason, including a
change to the Services or the Services Systems, the parties may agree that such
Service Levels be adjusted for the subsequent Contract Year, and, upon agreement
by Customer and CSC, such Service Levels shall be adjusted by a Change order. In
addition, either Customer or CSC may, at any time upon notice to the other
party, initiate negotiations to review and adjust any of the Service Levels
which such party in good faith believes are inappropriate at the time, provided,
however, that if the parties fail to agree on the appropriate modification to be
made to a Service Level, acting reasonably, the existing Service Level shall
continue to apply. The parties agree to amend Service Levels in the event that
it becomes clear that any Service Level was established in reliance upon
mistaken data.
5.3 PERFORMANCE REPORTS.
In addition to its reporting obligations hereunder, CSC shall within ten (10)
days of the end for each month provide Customer with reports as required by any
Exhibit or Work Assignment concerning the levels of performance of the Services
and the Services Systems in sufficient detail to determine CSC compliance with
the Service Levels as set out in any Exhibit or Work Assignment and to calculate
accurately all Non-Performance Adjustments, if applicable.
5.4 PERFORMANCE DEFICIENCY RESPONSE.
If CSC fails at any time to meet any Service Level, in addition to any other
remedies that may be available to Customer, CSC shall follow the procedures and
take such steps as may be required pursuant to an Exhibit or Work Assignment in
respect of such failure or series of failures.
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5.5 NON-PERFORMANCE ADJUSTMENTS.
(a) Customer shall be entitled to Non-Performance Adjustments calculated
in accordance with any Exhibit or Work Assignment, where provided
for in any Exhibit or Work Assignment.
(b) The calculation and payment of Non-Performance Adjustments will be
in the manner as described in any Exhibit or Work Assignment.
If CSC has paid a Non-Performance Adjustment in respect of a breach of any
Exhibit, Work Assignment or this Agreement and Customer then makes a Claim in
respect of such breach then any amount awarded or paid in respect of that Claim
must be reduced by an amount equal to the relevant Non-Performance Adjustment.
5.6 CUSTOMER SATISFACTION SURVEYS.
(a) At least once every twelve (12) months during the Term or as
otherwise agreed by the parties, as part of the Services, CSC shall
conduct customer satisfaction surveys to capture and measure
customer satisfaction within Customer in respect of the provision of
the Services by CSC. Within one year of the Effective Date, CSC and
Customer shall jointly develop and agree upon the content and scope
of such surveys, including the relevant classes of end-users to be
surveyed, and the methods and procedures to be used in carrying out
such surveys. The timing of the surveys shall be subject to approval
of Customer and CSC. The parties shall revise and update the surveys
from time to time to reflect changes in the Services and the
businesses of Customer.
(b) The parties shall discuss the results of any customer satisfaction
survey and discuss and agree upon any necessary changes to the
Services resulting therefrom, such changes to be implemented
pursuant to the Change order process.
6. MANAGEMENT
6.1 JOINT MANAGEMENT COMMITTEE.
Customer and CSC will create, and shall participate in, a joint management
committee (the "JOINT MANAGEMENT COMMITTEE") that shall consist of no less than
one (1) management representative from each of Customer and CSC. The Joint
Management Committee shall supervise and manage the performance of obligations
under any Exhibit, Work Assignment or this Agreement. The initial
representatives of each party to the Joint Management Committee shall be as
follows:
CSC: XXX XXXXX, CUSTOMER EXECUTIVE
CUSTOMER: XXXX XXXXX, VICE PRESIDENT
Within sixty (60) days after the Effective Date, Customer and CSC will agree
upon a shared party's process for replacement of the Joint Management Committee
members.
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6.2 RESPONSIBILITIES OF THE JOINT MANAGEMENT COMMITTEE.
The Joint Management Committee will:
(a) meet in accordance with the time frequencies specified in Section
6.3, or more frequently as the Joint Management Committee may
determine, to generally review the performance of the Agreement and
to facilitate the cooperation of the Parties in the performance of
the Agreement;
(b) upon Customer's or CSC's request, assist in resolving any issues
arising during the negotiation of an amendment to this Agreement;
(c) participate in the Dispute Resolution Procedures as provided for in
this Agreement; and
(d) have such other responsibilities and obligations or perform such
other duties as the parties may mutually agree to from time to time
hereunder.
6.3 MEETINGS.
Within two (2) months after the Effective Date, CSC and Customer will mutually
determine a schedule for periodic meetings of the Joint Management Committee,
which meetings will include a quarterly management meeting to review appropriate
contractual, business, planning, or performance issues, or as required by either
party. CSC will publish an agenda for each meeting of the Joint Management
Committee sufficiently in advance of each meeting to allow meeting participants
a reasonable opportunity to prepare for each meeting.
7. CHANGES
7.1 CHANGES TO SCOPE OF OBLIGATIONS.
Notwithstanding any other provision of any Exhibit, Work Assignment or this
Agreement, the parties agree that any changes, modification, additions,
revisions or alterations to either party's obligations under any Exhibit, Work
Assignment or this Agreement shall constitute an amendment of such Exhibit, Work
Assignment or this Agreement and shall be subject to either Section 23 (Entire
Agreement) or Section 7.2, as applicable.
7.2 CHANGES.
During the Term, Customer may at any time request that changes, modifications,
additions, revisions or alterations be made to the Services ("CHANGE") and CSC
agrees to consider and, in good faith, use its reasonable efforts to implement
any Change requested by Customer on terms and conditions that are fair and
reasonable and not inconsistent with the terms hereof. In order to promote,
facilitate and expedite the request, consideration and possible acceptance of
proposed Changes, CSC and Customer agree to the Change order procedures and
protocols and Change implementation procedures set out in Schedule F (the
"CHANGE MANAGEMENT PROCEDURES").
7.3 CHANGES - PRICING AND TERMS.
CSC agrees and confirms that any pricing, costs or other charges that may be
proposed or otherwise submitted to Customer, in connection with any Agreement
amendments or Changes,
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and the terms and conditions on which such amendments and/or Changes will be
provided to Customer, will comply with CSC obligations pursuant to Section 4.24.
8. PAYMENT TERMS
8.1 UNDISPUTED CHARGES.
CSC will invoice Customer monthly, in arrears, for all charges incurred by
Customer under this Agreement, an Exhibit or Work Assignment, and payment will
be due within thirty (30) days of the receipt of the invoice. Customer shall pay
undisputed charges when such payments are due. If any amount is not paid within
thirty (30) days after the invoice is received by Customer and Customer has not
timely notified CSC of its intent to dispute the unpaid amount pursuant to the
provisions of Section 8.2, Customer waives its right to dispute the unpaid
amount and will pay CSC interest on the amount due, beginning thirty (30) days
after the invoice is received by Customer, at a rate of 1.5% per month, or the
highest rate permitted by applicable law if that is less. However, the charging
of interest is not consent to late payment. Customer will make payment to the
entity and address stated on the invoice. Non-payment of undisputed amounts due
under this Section shall be a material breach of this Agreement. Customer will
reimburse CSC for any costs or attorneys' fees reasonably incurred by CSC to
collect overdue amounts. Neither the failure of CSC to deliver an invoice for
charges incurred hereunder nor any error in the amount invoiced by CSC for such
charges shall constitute a waiver by CSC of Customer's obligations to pay such
charges.
8.2 DISPUTED CHARGES.
Customer may withhold payment of particular charges that Customer disputes in
good faith, provided that Customer, provides CSC with written notice of its
intent to withhold payment within thirty (30) days after the relevant invoice is
received by Customer, and such notice is signed by an authorized officer of
Customer. The Parties will promptly pursue in good faith any applicable dispute
resolution procedures relating to the disputed amount. Anything to the contrary
in this Agreement notwithstanding, non-payment of an amount properly disputed
under this Section shall not constitute a material breach of this Agreement or
of any Exhibit or Work Assignment attached to this Agreement unless the dispute
has been resolved in favor or CSC and Customer has not paid CSC within a
reasonable time following resolution of the dispute.
8.3 INVOICE.
During the Term and the Termination Assistance Period, CSC shall submit to
Customer an invoice payable within thirty (30) days of receipt, setting out in
reasonable detail:
(a) the Fees set out in all Exhibits for the month in which the invoice
is issued;
(b) if applicable, any Non-Performance Adjustments to which Customer is
entitled in respect of the preceding month;
(c) such other fees, costs or charges as are required to be paid under
any Exhibit or this Agreement or any Change order in respect of
the month in which the invoice is issued; and
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(d) applicable Taxes required to be paid by Customer in respect of the
Services provided during the proceeding month, itemized, for greater
certainty, according to consulting and non-consulting charges.
8.4 ADDITIONAL INFORMATION.
Along with the invoice referred to in Section 8.3, CSC shall provide the
following information and documentation to Customer:
(a) a report prepared by CSC setting out in detail the calculation of
the Non-Performance Adjustments applicable;
(b) a statement of any pre-approved Service costs and expenses charged
to Customer; and
(c) such additional information as Customer may reasonably request.
8.5 COSTS AND EXPENSES.
All costs and expenses incurred by CSC in connection with the performance of its
obligations under this Agreement shall, unless otherwise agreed by the parties
in writing, be to the account of and be the sole responsibility of CSC. CSC
shall obtain the written approval of Customer prior to incurring any additional
costs or expenses for which it seeks reimbursement from Customer. Receipts and
documentation in a form acceptable to Customer shall support any reimbursable
costs and expenses. Customer will reimburse CSC for any expenses CSC incurs to
provide services requested by Customer (other than CSC's normal salary and
overhead costs). To be reimbursed, the need to incur such expenses (but not
necessarily the amount of the expense) must be pre-approved by Customer in
writing and all such expenses must conform to Customer's expense guidelines as
may from time to time be provided to CSC by Customer. Common reimbursable
expenses include: transportation costs for travel, airfare (in economy class
only), meals, and lodging for persons who travel to provide services; living
allowances; and charges paid to third party service providers such as delivery
charges, telephone charges, and computer network charges. This list is not
exclusive, and other types of expenses may occur.
8.6 TIME OF PAYMENT.
Any sum due to a Party pursuant to this Agreement for which the time of payment
is not otherwise specified shall be due and payable thirty (30) days after
receipt by the other Party of an invoice or demand for payment.
8.7 STALE INVOICES.
If CSC does not invoice Customer for any amount within ninety (90) days after
the month in which the applicable Services are rendered or the expense incurred,
CSC shall be deemed to have waived any right it may otherwise have to invoice
for and collect such amount. If Customer does not make a written claim to CSC
for any improperly invoiced amounts within ninety (90) days after Customer
receives any such invoice, Customer shall be deemed to have waived any right it
may otherwise have to make an adjustment for such amount.
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8.8 TAXES.
(a) CSC Responsibility
CSC will be responsible for all applicable property, payroll and
employment, goods and services, sales, service, value added or use taxes
(collectively 'TAXES') levied on CSC in respect of:
(i) any goods, services, property assets or resources acquired,
used or consumed by CSC in connection with the Services
(provided, however, CSC will re-xxxx Customer for any Taxes
due on expenses incurred by CSC in performing the Services
such as FEDEX, postage, supplies, printing, card stock,
travel, and the like);
(ii) employee wages and salaries for CSC's employees; and
but for the avoidance of doubt, CSC will not be responsible for Taxes
based on the income of Customer.
(b) Customer Responsibility
Customer will pay when due any sales, value-added or other tax imposed by
any taxing jurisdiction on the provision of the Services or any component
thereof at the rate of tax at that time during the Term. For the avoidance
of doubt, Customer will not be responsible for taxes based on the income
of CSC.
(c) Customer Commodity Tax Environment
(i) CSC and Customer agree to cooperate to achieve tax effective
structuring and invoicing processes to reduce both parties'
exposure to taxes, and to protect its current rates of
recovery of certain tax costs, in a manner that complies in
all respects with Applicable Laws.
(ii) CSC agrees to invoice Customer for the Services in a manner,
and with sufficient documentation, to enable Customer to
attribute to any goods and services tax (or other similar
taxes, however they may be described, in the relevant
jurisdiction in which the Services are being provided) to
specific Customer business segments and activities to achieve,
where eligible, the rates of recovery for those taxes enjoyed
by Customer immediately prior to the Effective Date. In
addition, CSC will cooperate with Customer to facilitate tax
effective structuring and invoicing with the goal of
maintaining or improving Customer's recovery rates of goods
and services taxes, sales taxes and (or other similar taxes,
however they may be described, in the relevant jurisdiction in
which the Services are being provided).
(iii) CSC invoices to Customer will separately state the amount of
any taxes CSC or its Affiliates are collecting from Customer.
CSC agrees to invoice, or cause its Affiliates to invoice,
Customer separately for Services, which are
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exempt from any retail sales tax and other applicable sales
and use taxes, and Services, which are subject to such taxes.
(d) Tax Reduction
(i) If any taxing jurisdiction imposes after the Effective Date a
new or expanded sales, value-added, withholding or other tax
on the provision of the Services or any component thereof (a
'NEW TAX'), the parties will co-operate in attempting to
reduce the amount of such New Tax, or to increase the recovery
of such New Taxes paid by a party, to the maximum extent
feasible as permitted by Applicable Law.
(e) Non-recoverable Sales Tax Relating to Relocation
(i) If any non-recoverable sales taxes applicable to the
Services are imposed on Customer as a result of CSC's
transition of Services to a location other than the
initial location of CSC's facilities, CSC shall discount
the Fees so that Fees prior to the discount plus the
non-recoverable sales taxes applicable prior to the move
will be equal to the Fees after the discount plus the
non-recoverable sales taxes applicable after the move.
(ii) If any non-recoverable sales taxes applicable to the
Services are imposed on CSC as a result of Customer's
request for Services to be provided from a location other
than the initial location of CSC's facilities, CSC shall
increase its charges so that charges prior to the increase
less non-recoverable sales taxes applicable prior to the
move will be equal to the Fees after the increase less
non-recoverable sales taxes applicable after the move.
(f) Withholding Taxes
Customer may withhold from any payments to CSC and where required, pay to
the appropriate taxing authority any withholding taxes required to be
withheld by Applicable Law, but will provide CSC with a receipt or other
document evidencing the withholding as required by Applicable Law within
sixty (60) days or as soon thereafter as reasonably possible from when
payment is made to CSC. CSC will be solely responsible for claiming any
applicable tax credits related to such withholding taxes. Customer shall
not be liable in any manner for such tax amounts withheld and remitted to
the appropriate taxing authority.
(g) Right to Challenge Assessments
Customer shall be entitled, with the full co-operation of CSC, to
challenge any Tax (including New Taxes) or level of Tax imposed or
assessed on the Services or on any Fee. Customer agrees to bear all costs
incurred by CSC in challenging taxes assessed on the Services or license
fees by a taxing authority.
(h) General
The parties will cooperate with each other to enable each to determine its
respective Tax liabilities accurately and to reduce such liabilities to
the extent permitted by Applicable
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Law. Without limiting the generality of the foregoing, each party shall
provide to the other any resale certificates, exemption certificates,
information regarding out-of-province or out-of-country sales or use of
equipment and services, and such other similar information as the other
party may reasonably request.
(i) Tax Credits
In the event that CSC carries on scientific research or experimental
development or other activities paid for by Customer for which Tax credits
or similar financial benefits are made available, Customer shall be
entitled to receive the Tax credits therefor, and CSC will provide
reasonable information and assistance to enable Customer to obtain such
credits. Customer agrees to bear all costs incurred by CSC associated with
providing reasonable assistance referred to in this paragraph.
8.9 INTENTIONALLY DELETED.
8.10 REPATRIATION OF SERVICES.
Following the expiration or termination of an Exhibit or this Agreement for any
reason, including Customer exercising it's right to take possession of any
Software Product under applicable licenses and currently being hosted by CSC and
from which CSC is providing Services to Customer, CSC will provide to the
Customer, if the Customer so desires, assistance in transferring the Services,
including any related Software Product, contracts, data or customer-owned
equipment, back to the Customer, its Affiliates, or to another third party
service provider ("Transfer Assistance") in order to ensure the orderly
resumption of the provision of Services to Customer and/or the transfer of some
or all of the Services to one or more third party service providers without any
material interruption in the provision of the Services. CSC will provide such
Transfer Assistance using the resources contracted by Customer under any
applicable Work Assignment. If Transfer Assistance will require the use of
different or additional services or resources beyond those contracted under any
applicable Work Assignment and which, CSC is then using to provide the Services;
such request for Transfer Assistance will be considered a new service for which
the Customer and CSC will negotiate mutually satisfactory rates.
9. IMPROVED TECHNOLOGY AND GAINSHARE
9.1 IMPROVED TECHNOLOGY.
As part of the Services hereunder, CSC will be responsible to review
periodically, and where appropriate, investigate and assess technology changes
and process improvements as they relate to the Services provided to Customer and
report to Customer at least once per calendar year concerning its findings in
respect of the same. In the event that CSC identifies an opportunity to
implement new technology or processes to either improve the Service Levels or
that may otherwise benefit Customer, the parties will request that their
representatives on the Joint Management Committee assess the opportunity and
meet if necessary to determine whether a business case should be developed for
Customer's consideration. The approval and implementation of any new
technologies or processes identified by CSC shall be made through the Change
procedures set out herein in Article 7. Customer and CSC agree to share
technology strategies on an annual basis through the Joint Management Committee.
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9.2 GAINSHARE.
In addition to CSC's obligation pursuant to Article 7, the parties agree that
CSC may, from time to time, identify and submit a formal proposal to Customer
regarding specific operations, goods and/or services where Customer's costs can
be reduced ("GAINSHARE PROPOSAL"). The Gainshare Proposal shall include the
identification of the business operation(s), goods and/or services, the proposed
changes in same, and the projected cost savings based on the price that Customer
is paying at the time of the Gainshare Proposal. The Gainshare Proposal will
also invite Customer to other clients' sites in order to view successful
examples of similar Gainshare Proposals whenever possible. Within thirty (30)
days of Customer receipt of a Gainshare Proposal, Customer shall either
approve or reject the proposal by executing the Gainshare Proposal accordingly
and delivering same to CSC. CSC will start to implement the cost savings in
the approved Gainshare Proposal within sixty (60) days of its receipt of said
written approvals.
9.3 COST SAVINGS GAINSHARE.
The parties agree that, in respect of any cost saving opportunities implemented
by the parties pursuant to this Article 9, they shall share equally all cost
savings actually realized by Customer. CSC shall provide Customer with monthly
reports as to the amount of the cost savings. Customer shall cooperate with CSC
in implementing the cost savings. Customer agrees not to circumvent CSC by
implementing any cost savings proposed by CSC without sharing the realized cost
savings set forth above, while this Agreement, any Exhibit or Work Assignment is
in effect. Customer acknowledges that the proposed cost savings are estimated
and may not reflect the actual savings over time. CSC acknowledges that any
estimated cost savings shall be calculated net of any related or necessary
capital or other expenditure by Customer in order to implement the Gainshare
Proposal. Should CSC default by failing to implement the estimated cost savings
in a Gainshare Proposal in a timely manner, Customer may provide written notice
to CSC indicating such failure by CSC and CSC shall be provided thirty (30 days)
to cure such default from the date of such notice. In the event that CSC does
not implement the estimated cost savings in the Gainshare Proposal within thirty
(30) days of receiving said notice, Customer may terminate such Gainshare
Proposal and CSC shall compensate Customer for all Customer's incurred expenses
relating to such Gainshare Proposal.
10. REPRESENTATIONS, WARRANTIES AND COVENANTS
10.1 BY CSC.
(a) CSC represents, warrants, and covenants that it is a corporation
duly incorporated, validly existing and in good standing under the
laws of Nevada; that it has all the requisite corporate power and
authority to execute, deliver, and perform this Agreement; that it
has duly authorized execution, delivery, and performance of this
Agreement; it has and shall maintain any governmental license,
authorization, or qualification required for it to perform this
Agreement; no approval, authorization or consent of any governmental
or regulatory authority is required to be obtained for it to
execute, deliver, and perform this Agreement; and to its knowledge,
there is no outstanding litigation, arbitrated matter or other
dispute to which it is a party which, if decided unfavorably to it,
would reasonably be expected to have a material adverse effect on
the parties' ability to fulfill their respective obligations under
this Agreement.
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(b) CSC represents, warrants, and covenants that it has all of the
intellectual property and contractual rights necessary to license
each Software Product or CSC Work Product licensed to Customer and
that such Software Product or CSC Work Product does not violate any
third party's intellectual property, moral, confidentiality,
contractual, equitable, or statutory rights. This warranty continues
as long as any Software Product or CSC Work Product license is in
effect.
(c) any CSC Work Product or deliverables, whether in whole or in part,
shall be either solely created by employees of CSC during the
ordinary course of the employee's employment with CSC, or by other
persons who have executed and delivered a written agreement that
completely conveys, assigns, and transfers to CSC, without
reservation, all right, title and interest in and to the part or
aspect of the CSC Work Product or deliverables thereof, created by
such person and, in the case of such individuals, has also
irrevocably waived in writing, in favour of CSC, all of his or her
moral rights in respect of the CSC Work Product or deliverables or
part thereof.
(d) all Systems supplied by CSC and its subcontractors shall be
transferred and/or assigned free and clear of all liens and
encumbrances at the time of assignment to Successor.
(e) unless CSC obtains Customer's prior written approval, any hardware
sold, leased or otherwise supplied to Customer will be, manufactured
from new or reconditioned parts and in good condition and repair
provided that any transfer to Customer after use by CSC to provide
the Services will not constitute a breach of this warranty.
(f) CSC will use commercially reasonable efforts to obtain for Customer
warranties as good as or better than the warranties obtained for
other customers in similar circumstances and shall ensure that
warranties are assignable and CSC will assign these warranties to
Customer upon transfer of the items to Successor.
(g) CSC shall not provide the Services using any hardware that is not
approved by the Canadian Standards Association or comparable Ulc,
cUL or cETL Standards, or any Systems that fail to comply with all
applicable Canadian and United States regulations, including
environmental, import and export regulations.
(h) CSC and its Subcontractors shall comply with the Customer Data and
System Security Policies as same are provided to CSC by Customer or
by its Affiliates to whom CSC is providing Services under this
Agreement or a Statement of Work.
(i) CSC is under no current obligation or restriction, nor will it
knowingly assume any such obligation or restriction that does or
would in any way interfere or conflict with, or that does or would
present a conflict of interest concerning the performance to be
rendered hereunder or the rights and licenses granted herein.
(j) CSC represents, warrants, and covenants that any services performed
for Customer by CSC will be performed in a professional and timely
manner and shall conform to the Service Levels, other specifications
and requirements set out in this Agreement or any Exhibit. In
addition, CSC, and all employees or permitted subcontractors, shall
have all necessary training, skill, experience and competence
required to perform and manage the Services in an efficient and
cost-effective manner. Customer may not claim a breach of this
warranty for any particular services more than ninety (90) days
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after those services are performed (unless otherwise agreed in a
Work Assignment or Exhibit). Services that result in CSC Work
Product will be deemed performed for purposes of this paragraph when
CSC delivers that CSC Work Product to Customer. Customer must notify
CSC within ninety (90) days of a breach of the foregoing warranty
(unless otherwise agreed in a Work Assignment or Exhibit) in
reasonable detail, thereupon CSC shall diagnose, analyze, and
correct such breach within ninety (90) days of such notice (unless
otherwise agreed in a Work Assignment or Exhibit). THIS SHALL BE
CUSTOMER'S SOLE REMEDY FOR ANY SUCH BREACH OF THIS WARRANTY, TO THE
EXCLUSION OF ALL OTHER REMEDIES, EVEN IF SUCH LIMITATION CAUSES THIS
WARRANTY OR ITS REMEDY TO FAIL OF THEIR ESSENTIAL PURPOSES. HOWEVER,
FAILURE BY CSC TO REMEDY A BREACH OF THIS WARRANTY, AS PROVIDED FOR
IN THE PRECEDING SENTENCE, SHALL THEN CONSTITUTE A MATERIAL BREACH
UNDER THIS AGREEMENT WHICH SHALL THEN ENTITLE CUSTOMER TO ALL RIGHTS
AND REMEDIES OTHERWISE AVAILABLE TO CUSTOMER FOR A MATERIAL BREACH
UNDER THIS AGREEMENT INCLUDING, WITHOUT LIMITATION, THE REMEDIES
AVAILABLE UNDER SECTION 8.
(k) For each Software Product licensed hereunder, CSC represents,
warrants, and covenants that, for the period that the Utilization
and Support Exhibit related to that Software Product remains in
effect, the Software Product (and its Releases) furnished to
Customer shall conform substantially to the current published
functional specifications contained in the Software Product's
Documentation. Customer must notify CSC within ninety (90) days of a
breach of the foregoing warranty (unless otherwise agreed in a Work
Assignment or Exhibit) in reasonable detail, thereupon CSC shall
diagnose, analyze, and correct such breach within ninety (90) days
of such notice (unless otherwise agreed in a Work Assignment or
Exhibit). THIS SHALL BE CUSTOMER'S SOLE REMEDY FOR ANY SUCH BREACH
OF THIS WARRANTY, TO THE EXCLUSION OF ALL OTHER REMEDIES, EVEN IF
SUCH LIMITATION CAUSES THIS WARRANTY OR ITS REMEDY TO FAIL OF THEIR
ESSENTIAL PURPOSES. HOWEVER, FAILURE BY CSC TO REMEDY A BREACH OF
THIS WARRANTY, AS PROVIDED FOR IN THE PRECEDING SENTENCE, SHALL THEN
CONSTITUTE A MATERIAL BREACH UNDER THIS AGREEMENT WHICH SHALL THEN
ENTITLE CUSTOMER TO ALL RIGHTS AND REMEDIES OTHERWISE AVAILABLE TO
CUSTOMER FOR A MATERIAL BREACH UNDER THIS AGREEMENT INCLUDING,
WITHOUT LIMITATION, THE REMEDIES AVAILABLE UNDER SECTION 8. Excluded
from the foregoing warranty are any Customer-Specific Errors (as
defined in the respective Utilization and Support Exhibit) and any
incorrect processing results or other effects of limitations or
incompatibility of the equipment, system software, previously-stored
data, data exchanged with other programs, and other components of
the computer system environment in which the Software Product is
used. CSC shall have no responsibility as to such problems.
(l) For each Software Product licensed hereunder, CSC represents,
warrants, and covenants that, for the period that the Utilization
and Support Exhibit related to the Software Product remains in
effect, the Current Base System (as defined in the relevant
Utilization and Support Exhibit) of the Software Product will not
contain any Self-Help Code known to CSC other than as disclosed to
Customer in writing at
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the time the Release containing such Self-Help Code is delivered to
Customer. Self-Help Code means any back door, time bomb, drop dead
device, or other software routine designed and intended by CSC to
disable a computer program automatically with the passage of time or
transfer to another central processing unit. If Customer notifies
CSC in reasonable detail of a breach of the foregoing warranties
that occurred in the sixty (60) days prior to such notice (unless
otherwise agreed in a Work Assignment or Exhibit), then CSC shall
provide a Release conforming with this warranty as soon as
reasonably possible but within ten (10) business days. THIS SHALL BE
CUSTOMER'S SOLE REMEDY FOR ANY SUCH BREACH OF THIS WARRANTY, TO THE
EXCLUSION OF ALL OTHER REMEDIES, EVEN IF SUCH LIMITATION CAUSES THIS
WARRANTY OR ITS REMEDY TO FAIL OF THEIR ESSENTIAL PURPOSES. HOWEVER,
FAILURE BY CSC TO REMEDY A BREACH OF THIS WARRANTY, AS PROVIDED FOR
IN THE PRECEDING SENTENCE, SHALL THEN CONSTITUTE A MATERIAL BREACH
UNDER THIS AGREEMENT WHICH SHALL THEN ENTITLE CUSTOMER TO ALL RIGHTS
AND REMEDIES OTHERWISE AVAILABLE TO CUSTOMER FOR A MATERIAL BREACH
UNDER THIS AGREEMENT INCLUDING, WITHOUT LIMITATION, THE REMEDIES
AVAILABLE UNDER SECTION 8.
(m) For each Software Product licensed hereunder, CSC represents,
warrants, and covenants that, for the period that the Utilization
and Support Exhibit related to the Software Product remains in
effect, the Current Base System (as defined in the relevant
Utilization and Support Exhibit) of the Software Product will not
contain any Unauthorized Code known to CSC. Unauthorized Code means
computer instructions that alter, destroy or inhibit the Customer's
processing environment, including, but not limited to, data storage
and computer libraries. Unauthorized Code includes, but is not
limited to, programs that self-replicate without manual
intervention, instructions programmed to activate at a
pre-determined time or upon a specified event, and programs
purporting to do a meaningful function but designed for a
destructive function. CSC further represents, warrants, and
convenants that it shall take reasonable steps to test all Releases
furnished to Customer for the presence of Unauthorized Code. The
determination of "reasonable tests" shall be based on then current
industry standards for testing for such Unauthorized Code on the
applicable hardware platform. However, Customer may not use said
Releases until Customer has similarly tested all Releases on
Customer's computers after delivery. If Customer notifies CSC in
reasonable detail of a breach of the foregoing warranties that
occurred in the sixty (60) days prior to such notice (unless
otherwise agreed in a Work Assignment or Exhibit), then CSC shall
provide a Release conforming with this warranty as soon as
reasonably possible but within ten (10) business days. THIS SHALL BE
CUSTOMER'S SOLE REMEDY FOR ANY SUCH BREACH OF THIS WARRANTY, TO THE
EXCLUSION OF ALL OTHER REMEDIES, EVEN IF SUCH LIMITATION CAUSES THIS
WARRANTY OR ITS REMEDY TO FAIL OF THEIR ESSENTIAL PURPOSES. HOWEVER,
FAILURE BY CSC TO REMEDY A BREACH OF THIS WARRANTY, AS PROVIDED FOR
IN THE PRECEDING SENTENCE, SHALL THEN CONSTITUTE A MATERIAL BREACH
UNDER THIS AGREEMENT WHICH SHALL THEN ENTITLE CUSTOMER TO ALL RIGHTS
AND REMEDIES OTHERWISE AVAILABLE TO CUSTOMER FOR A MATERIAL
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BREACH UNDER THIS AGREEMENT INCLUDING, WITHOUT LIMITATION, THE
REMEDIES AVAILABLE UNDER SECTION 8.
(n) For each Software Product licensed hereunder, CSC represents,
warrants, and covenants that, for the period that the Utilization
and Support Exhibit related to the Software Product remains in
effect, operation of the Licensed System in accordance with its
Specifications will not be impaired by occurrence of dates of
January 1, 2000 and later in program data, and that, within the
range of dates supported by the Licensed System, arithmetic,
comparison, sorting, day-of-week and day-of-year functions will
produce expected results (including correct leap year calculations).
If Customer notifies CSC in reasonable detail of a breach of the
foregoing warranty that occurred in the sixty (60) days prior to
such notice, then CSC shall provide assistance to diagnose, analyze,
and correct such breach within a commercially reasonable period of
time. THIS SHALL BE CUSTOMER'S SOLE REMEDY FOR ANY SUCH BREACH OF
THIS WARRANTY, TO THE EXCLUSION OF ALL OTHER REMEDIES, EVEN IF SUCH
LIMITATION CAUSES THIS WARRANTY OR ITS REMEDY TO FAIL OF THEIR
ESSENTIAL PURPOSES. HOWEVER, FAILURE BY CSC TO REMEDY A BREACH OF
THIS WARRANTY, AS PROVIDED FOR IN THE PRECEDING SENTENCE, SHALL THEN
CONSTITUTE A MATERIAL BREACH UNDER THIS AGREEMENT WHICH SHALL THEN
ENTITLE CUSTOMER TO ALL RIGHTS AND REMEDIES OTHERWISE AVAILABLE TO
CUSTOMER FOR A MATERIAL BREACH UNDER THIS AGREEMENT INCLUDING,
WITHOUT LIMITATION, THE REMEDIES AVAILABLE UNDER SECTION 8.
10.2 BY CUSTOMER.
(a) Customer represents, warrants, and covenants that it is a
corporation duly incorporated, validly existing and in good standing
under the laws of Canada, or the laws of a country or state
identified in an Exhibit or Work Assignment if an Affiliate; that it
has all the requisite corporate power and authority to execute,
deliver, and perform this Agreement and all Exhibits and Work
Assignments attached hereto; that it has duly authorized execution,
delivery, and performance of this Agreement and all Exhibits and
Work Assignments attached hereto; it has or shall obtain and shall
maintain any governmental license, authorization, or qualification
required for it to perform this Agreement and all Exhibits and Work
Assignments attached hereto; approval, authorization or consent of
any governmental or regulatory authority shall be obtained for it to
execute, deliver, and perform this Agreement and all Exhibits and
Work Assignments attached hereto; and to its knowledge, there is no
outstanding litigation, arbitrated matter or other dispute to which
it is a party which, if decided unfavorably to it, would reasonably
be expected to have a material adverse effect on the parties'
ability to fulfill their respective obligations under this Agreement
and all Exhibits and Work Assignments attached hereto.
(b) Customer warrants that it has the right to permit CSC's personnel to
use, for the purpose of providing services hereunder, all
facilities, hardware, software, and services to which Customer
provides CSC's personnel access.
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(c) Customer warrants that it has ownership, exclusive as to everyone
but CSC, of all intellectual property assigned hereunder to CSC.
10.3 DISCLAIMER OF ALL OTHER WARRANTIES.
THESE WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED,
INCLUDING (WITHOUT LIMITATION) THE IMPLIED WARRANTIES OR CONDITIONS OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND ANY REPRESENTATIONS,
WARRANTIES, OR CONDITIONS ARISING BY LAW OR FROM A COURSE OF DEALING, COURSE OF
PERFORMANCE, OR USAGE OF THE TRADE. The Software Products are complex and may
contain some non-conformities, defects, or errors. CSC does not warrant
uninterrupted or error-free operation or performance of the Software Products or
services, that all non-conformities can or will be corrected, or that the
Software Products will meet Customer's needs, expectations, or requirements.
There may be other warranties in Exhibits or Work Assignment to this Agreement.
However, no statement in this Agreement (including Exhibits and Work
Assignments) or any other document issued by a party is intended to be a
warranty unless it expressly states it is a warranty. In entering into this
Agreement, the parties have not relied on any conditions, representation, or
warranties except as provided in this Agreement.
11. INDEMNITIES
11.1 INTELLECTUAL PROPERTY INDEMNITY BY CSC.
If a third party makes a claim that a Software Product or a CSC Work Product
licensed to Customer under this Agreement infringes an intellectual property or
any other right of that third party, CSC will indemnify, hold harmless, and
defend Customer against that claim at CSC's expense and pay all costs, damages,
losses, liabilities, expenses, and attorneys' fees that a court awards, or that
are provided for in a settlement approved by CSC. CSC shall have no liability
for any claim which is based on: (a) a modification of the Software Product or
CSC Work Product by anyone other than CSC (unless otherwise agreed to by CSC in
a signed writing), (b) requirements or specifications or materials provided to
CSC by or on behalf of Customer, unless the Software Product or CSC Work Product
would still infringe the third party's intellectual property or other rights
absent such requirements or specifications or materials, (c) use of the Software
Product or CSC Work Product other than in accordance with CSC's specifications
and Documentation, or (d) use of the Software Product or CSC Work Product in
combination with data, software, or hardware not provided by CSC, unless the
Software Product or CSC Work Product would still infringe the third party's
intellectual property or other rights if not used in such combination. If a
claim of infringement is made or appears likely, CSC shall obtain the right for
Customer to continue using the affected Software Product or the CSC Work Product
or CSC may modify the Software Product or the infringing parts so that it is
non-infringing, provided there is no change or reduction in the scope, quality,
performance and functionality of the Software Product and provided such
modification does not require a change in the platform on which the Software
Product is then running; or replace the Software Product or CSC Work Product
with a substitute of equal or better quality provided there is no change or
reduction in scope, quality, performance and functionality of the Software
Product or CSC Work Product and provide the replacement does not require a
change in the platform on which the Software Product or CSC Work Product is then
running . CSC shall perform any installation and testing required in respect of
the foregoing, all at CSC's cost to ensure that the modification or replacement
is performing in accordance with the applicable Exhibit or this Agreement. If
CSC determines that none of these options is reasonably available, CSC may
cancel Customer's license
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for the affected Software Product or CSC Work Product upon paying Customer a
refund equal to the license fee payable under the terms of the Agreement to CSC
for the Software Product or CSC Work Product, less an amount equal to 10% of
such license fee for each year since CSC delivered the Software Product. This,
in addition to its indemnity obligations set out herein, are CSC's entire
obligations to Customer regarding any claim of infringement.
11.2 INTELLECTUAL PROPERTY INDEMNITY BY CUSTOMER.
If a third party makes a claim that CSC's use of hardware and software which
Customer provides to CSC infringes an intellectual property or other right of
that third party, Customer will indemnify, hold harmless, and defend CSC against
that claim at Customer's expense and pay all costs, damages, losses,
liabilities, expenses, and attorneys' fees that a court awards, or that are
provided for in a settlement approved by Customer. Unless otherwise agreed to by
Customer in a signed writing, Customer shall have no liability for any claim
which is based on: (a) a modification by CSC, or by a third party acting at the
direction of CSC, of the hardware or software which Customer provides to CSC,
(b) requirements or specifications or materials supplied by CSC to Customer for
the hardware or software which Customer provides to CSC, unless the hardware or
software would still infringe the third party's intellectual property or other
rights absent such requirements or specifications or materials, or (c) use of
the hardware or software in a manner for which it is not intended. If a claim of
infringement is made or appears likely, Customer may obtain the right for CSC to
continue using the affected hardware or software, or Customer may modify or
replace the hardware or software. If Customer determines that none of these
options is reasonably available, Customer may cancel CSC's license for the
affected hardware or software and CSC shall be relieved of any obligation
dependent upon CSC's use of such hardware or software. This, in addition to its
indemnity obligations set out herein, are Customer's entire obligations to CSC
regarding any claim of infringement
11.3 TORT INDEMNITY BY CSC.
If a third party makes a claim that Customer is responsible for (a) bodily
injury (including death) or damage to real property or tangible personal
property (not including software or data) solely caused by the premises,
negligence, gross negligence, or willful misconduct of CSC or its employee or
contractor acting within the scope of employment or engagement or (b) a
violation of labor or employment law or contract committed against CSC
personnel by CSC, CSC will indemnify, hold harmless, and defend Customer against
that claim at CSC's expense and pay all costs, damages, losses, liabilities,
expenses, and attorneys' fees that a court awards, or that are provided for in a
settlement approved by CSC. This is CSC's entire obligation to Customer
regarding any such claim.
11.4 TORT INDEMNITY BY CUSTOMER.
If a third party makes a claim that CSC is responsible for (a) bodily injury
(including death) or damage to real property or tangible personal property (not
including software or data) solely caused by the premises, negligence, gross
negligence, or willful misconduct of Customer or its employee or contractor
acting within the scope of employment or engagement or (b) a violation of labor
or employment law or contract committed against Customer personnel by Customer,
Customer will indemnify, hold harmless, and defend CSC against that claim at
Customer's expense and pay all costs, damages, losses, liabilities, expenses,
and attorneys' fees that a court awards, or that are provided for in a
settlement approved by Customer. This is Customer's entire obligation to CSC
regarding any such claim.
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11.5 INDEMNIFICATION PROCEDURES.
A party required to provide indemnification as set out above (the "Indemnifying
Party") will have no liability under this section unless the party entitled to
indemnification (the "Indemnified Party") promptly notifies the Indemnifying
Party in writing of any claim or allegation that is subject to indemnification,
and allows the Indemnifying Party to control, and cooperates with the
Indemnifying Party in, the defense and settlement of the claim. The Indemnified
Party may, at its own cost and expense, monitor, through its attorneys or
otherwise, such defense and settlement of such claim. No settlement of a claim
shall require the payment of money by an Indemnified Party without the consent
of the Indemnified Party.
11.6 DISCLAIMER OF OTHER INDEMNITIES.
THESE INDEMNITIES ARE IN LIEU OF ALL OTHER INDEMNITIES, EXPRESS OR IMPLIED,
INCLUDING (WITHOUT LIMITATION) ANY INDEMNITIES ARISING BY LAW OR FROM A COURSE
OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF THE TRADE.
12. DAMAGES
12.1 EXCLUSIONS OF LIABILITY.
Under no circumstances will either party be liable for:
(a) third-party claims against the other party for loss or damages,
except as provided in Article 11 of this Agreement;
(b) loss or damage to the other party's records or data, except to the
extent caused by such party's breach of an obligation in an Exhibit
or Work Assignment to provide backup or disaster recovery services;
(c) consequential damages (including lost opportunity, profits, use, or
savings) or incidental damages, even when advised of their
possibility, or punitive damages; or
(d) breaches of this Agreement, an Exhibit or Work Assignment that the
breaching party has corrected within a reasonable period of time.
12.2 LIMITATION OF LIABILITY.
In the case of any claim by CSC against Customer related to this Agreement or
any transaction under this Agreement, regardless of the basis of the claim,
Customer's liability will be limited to actual loss or damage up to the
aggregate consideration for the Software Products and services to which
Customer's breach relates. In case of any claim by Customer against CSC related
to this Agreement or any transaction under this Agreement, regardless of the
basis of the claim, CSC's liability will be limited to the actual loss or damage
caused by defects in:
(a) a Software Product as delivered to Customer or the services for
initial installation and implementation of the Software Product, up
to the greater of $100,000 or the aggregate amount of the license
fees payable by Customer to CSC for the Software Product and
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services for its initial installation and implementation (excluding
reimbursable expenses) under this Agreement;
(b) an ongoing service (such as utilization, maintenance, enhancement,
support, lease, processing, or administrative services), up to the
greater of $100,000 or the aggregate amount paid by Customer to CSC
for twelve months of the services immediately proceeding the
occurrence of the claim (excluding reimbursable expenses) or, if the
defect giving rise to such liability occurs in the first twelve
months of an ongoing service, then the aggregate amount payable by
Customer to CSC for the first twelve months of the service
arrangement giving rise to the liability; and
(c) any other services provided pursuant to a Work Assignment or group
of Work Assignments related to a single project, up to the greater
of $100,000 or the aggregate amount payable by Customer to CSC for
the services (excluding reimbursable expenses) under the Work
Assignment or group of Work Assignments.
For greater clarity, pursuant to Section 3.3, CSC is not liable for any
modification or enhancement of any Software Product, or the compatibility of any
software or service with such modification or enhancement performed by or on
behalf of Customer. However, if any Software Product has been modified or
enhanced pursuant to Section 3.3 and Customer sustains actual loss or damage
caused by a defect in the Software Product that would have occurred if no
modification or enhancement had been made to the Software Product, then the
provisions of Section 12.2(a) shall control CSC's liability to Customer, if any.
12.3 EXCEPTIONS.
The limitations of liability set out in Sections 12.1 and 12.2 shall not apply
to
a) payments described in Section 11 of this Agreement;
b) damage to real property and tangible personal property (not
including software or data) caused by the negligence, gross
negligence, or willful misconduct of the party or its employees or
contractors; or
c) breaches of a party's obligations related to confidentiality,
assignment, use, or ownership of hardware or software licensed or
provided under this Agreement, including, for greater clarity,
either party's indemnity obligations under this Agreement.
12.4 ENFORCEMENT.
THE LIMITATIONS OF LIABILITY IN THIS SECTION WILL BE ENFORCED, EVEN IF ANY
EXCLUSIVE REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
13. CONFIDENTIALITY
13.1 CUSTOMER'S CONFIDENTIALITY OBLIGATIONS.
CSC Confidential Information: Customer understands that the Software Products
(including the program code, documentation, specifications, logic and design of
the Software products) are
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confidential trade secrets of CSC, developed at great expense. Customer agrees
to treat as confidential and keep secret the Software Products and any
modifications, enhancements, or corrections to the Software Products (including
the program code, documentation, specifications, logic, and design of the
Software Products), and all information about CSC's internal affairs, business
plans, and business practices (the "CSC Confidential Information") disclosed to
Customer. Customer shall take precautions not less than those employed to
protect Customer's own proprietary information to maintain the confidentiality
of the CSC Confidential Information and in particular Customer agrees that it:
(a) will disclose the Software Product and information about the
Software Products only as follows:
(i) to employees of Customer who have a legitimate need to know,
who have been instructed to keep the Software Products
confidential, and who have signed a written agreement
obligating them to protect information Customer identifies as
confidential;
(ii) to Customer's auditors and governmental authorities
responsible for examining Customer's affairs who have agreed
in writing to keep the Software Products confidential; and
(iii) to third parties providing products or services to Customer,
but only after CSC, Customer, and the third party have signed
a non-disclosure agreement ("NDA") in a form substantially
similar to the NDA attached hereto as Appendix 1; provided,
however, Customer agrees it shall not disclose any Software
Product to any entity that develops computer software that
performs the same or similar functional capabilities as the
Software Product ("Software Competitor"), and that is listed
on Appendix 2 hereto without the prior written consent of CSC.
CSC shall have the right to update the Software Competitor
list on Appendix 2 from time to time should CSC, in good
faith, deem an entity to be a new Software Competitor.
Provided, further, that if Customer licenses a replacement
software system from a Software Competitor, CSC agrees to
disclose the record layouts formats for the Software Product
to such Software Competitor that has first executed an NDA to
enable Customer to convert the data processed on the Software
Product to a format compatible with the replacement software
system. All information disclosed to such Software Competitor
shall be used only to assist Customer in completing such data
conversion and the original and all copies shall be returned
to CSC upon conclusion of the data conversion project.;
(b) shall safeguard any and all copies of the Software Products and any
modifications, enhancements, or corrections to the Software
Products, and any related documentation against any unauthorized
disclosure;
(c) will not allow any copies of the Software Products or related
materials to leave its possession and control, and will supervise
all access to the Software Products;
(d) shall not disassemble the Software Products nor tamper with, bypass
or alter its security features; and
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(e) shall take all necessary steps to ensure that the provisions of this
Agreement are not violated by any person under its control or in its
service.
13.2 CUSTOMER CONFIDENTIAL INFORMATION.
During the term of this Agreement, CSC may acquire, know, or have within its
possession, confidential information of Customer, including without limitation,
Customer's commercial and trade affairs, rating and underwriting rules and
guidelines, the identity of clients, insureds and beneficiaries, claims,
benefits, rates and agents, financial information, and business practices
("Customer Confidential Information"). CSC shall keep Customer Confidential
Information confidential using standards and procedures generally recognized in
the industry as sufficient to protect such Customer Confidential Information and
shall only use Customer Confidential Information in performing the "Services"
under this Agreement as defined in Exhibits hereto. CSC shall not disclose
Customer Confidential Information to any third party without Customer's prior
written permission except to CSC's (and its Affiliates') employees and CSC's
subcontractors, their successors, agents and employees required to perform the
Services as well as Customer's auditors and governmental authorities responsible
for examining Customer's affairs. CSC agrees to obligate its employees and
subcontractors and their successors and agents receiving disclosure to Customer
Confidential Information to confidentiality obligations substantially similar as
those set forth in this Section 13.2.
13.3 EXCLUSIONS.
The confidentiality obligations herein shall not include information which:
(i) is or becomes publicly available in the insurance and data
industry through no act or omission of the receiving party;
(ii) was in the receiving party's lawful possession prior to the
disclosure and had not been obtained by such party either
directly or indirectly from the disclosing party;
(iii) is lawfully disclosed to the receiving party by a third party
without restriction on disclosure;
(iv) is furnished by the disclosing party to a third party in the
insurance and data processing industry without restrictions on
disclosure; or
(v) is independently developed by the receiving party.
The existence of a copyright notice will not cause, or be construed as causing
any part of the Software Product to be a published copyrighted work or to be in
the public domain.
13.4 CSC CONFIDENTIAL INFORMATION AND CUSTOMER CONFIDENTIAL INFORMATION ARE
COLLECTIVELY REFERRED TO HEREIN AS "CONFIDENTIAL INFORMATION."
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14. DEFAULTS
14.1 DEFAULT.
The occurrence of any one or more of the following events (each a "DEFAULT")
shall constitute a material breach of this Agreement, but shall not be
considered a Default if such occurrence is remedied prior to the expiry of the
relevant notice period (if any) and the relevant cure period (if any) applicable
to such event as hereinafter set out:
(a) a Party breaches any of its material duties, obligations or covenants
contained in this Agreement, any Exhibit or Work Assignment and, to the
extent such breach is capable of being remedied, such breach continues
unremedied for thirty (30) calendar days following notice thereof from the
non-breaching party to the breaching party;
(b) a party files a voluntary petition in bankruptcy or insolvency or a
petition for reorganization under any bankruptcy law, a party consents to
any involuntary petition in bankruptcy or if a receiving order is given
against such party under any bankruptcy law, or an order, judgment or
decree is entered by any court of competent jurisdiction, upon the
application of a creditor, receiver, trustee or liquidator of all or a
substantial part of a party's assets, and the same has not been discharged
or terminated without prejudice to the other party's rights under this
Agreement within forty-five (45) calendar days;
(c) in the case of CSC:
(i) CSC fails to perform the Services in accordance with any of the
Service Levels set out in any Exhibit or Work Assignment within any
consecutive twelve (12) month period during the Term or any Renewal
Term such that, in the reasonable opinion of Customer, the effect of
such Service Level failure is detrimental to Customer and materially
impacts the operations of Customer, and such failure is not cured
within the relevant cure period (if any) specified in the Service
Levels;
(ii) repeated breaches of non-material provisions of this Agreement by
CSC that Customer and CSC, acting jointly, determine have
collectively had a material detrimental impact on Customer;
(iii) there is a change in the financial condition, business or affairs of
CSC that Customer and CSC, acting jointly, determine has a material
and adverse effect on the ability of CSC to meet its obligations
under this Agreement, any Exhibit or Work Assignment;
(iv) there is a change in control of CSC in favour of a competitor of
Customer or in favour of an entity with which Customer has
previously terminated its relationship or whom Customer reasonably
believes is not capable of providing the Services to meet Customer's
objectives; and/or
(v) CSC ceases to carry on all or substantially all of its business.
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15. TERM AND TERMINATION
15.1 TERMINATION FOR CAUSE.
This Agreement will begin on the effective date stated on the signature page,
and will continue as long as any license granted to Customer or any service
arrangement between CSC and Customer remains in effect ("Term").
(a) Customer may terminate any Exhibit or Work Assignment on at least sixty
(60) days written notice in the event of Default by CSC or as may
otherwise be expressly permitted by this Agreement, any Exhibit or Work
Assignment.
(b) CSC may terminate any Exhibit or Work Assignment on at least sixty (60)
days written notice, in the event of Default by Customer or as may
otherwise be expressly permitted by this Agreement, any Exhibit or Work
Assignment.
(c) Any termination by Customer due to CSC's default shall be without any
penalty or termination fee whatsoever to Customer.
(d) The parties' rights of termination of this Agreement, any Exhibit or Work
Assignment are in addition, subject to Section l5.2(c), any other rights
or remedies to which the parties may be entitled in law or equity.
(e) If Customer defaults in its payment obligations, except for non-payment of
amounts properly disputed by Customer under Section 8.2, pursuant to an
Exhibit or Work Assignment, CSC can terminate the Exhibit or Work
Assignment pursuant to the procedures set forth herein without terminating
this entire Agreement.
Upon termination of an Exhibit, Customer will return to CSC all Software Product
code, Documentation, and materials licensed under such Exhibit and containing
CSC Confidential Information (and any copies thereof) in Customer's possession,
or delete any copies of same from Customer's computers and data storage devices,
and CSC will return all Customer data, files, and Customer Confidential
Information to Customer.
The provisions of this Agreement identified in Section 29 below, as well as any
other provisions of this Agreement that expressly or by implication are intended
to continue in force, shall survive termination of this Agreement, including,
without limitation, indemnity, damages, confidentiality terms, tax payments,
payment terms, and accrued payment obligations.
15.2 TERMINATION ASSISTANCE PERIOD.
Upon termination or expiration of an Exhibit, Work Assignment or this Agreement,
the rights and obligations of the parties will continue until the Conclusion
Date, subject to the provisions of Article 16 and the Transition Plan.
15.3 BENEFIT OF AGREEMENT - REGULATORY CONTROL.
CSC shall continue to provide all Services as stipulated in this Agreement,
including any Exhibit or Work Assignment, in the event that OSFI or any other
regulator in the jurisdiction in which the Services are being received and
provided takes control of Customer provided OSFI or such other regulator accepts
and abides by all of the obligations hereunder. This Agreement, including
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the license and software delivery provisions set forth herein, can be assigned
to a third party as stipulated by OSFI or such other regulator and such
assignment shall not be withheld provided: (i) the party is not a Competitor of
CSC; (ii) the third party assumes all of the obligations of Customer pursuant to
this Agreement; and (iii) such third party is, in CSC's reasonable opinion,
competent to meet all of its obligations hereunder. In the event this Section
conflicts with applicable law at the time OSFI or such other regulator takes
control of Customer or assigns this Agreement to a third party, this Section
will be modified to the extent necessary to comply with applicable law.
15.4 TERMINATION FOR CONVENIENCE.
Unless otherwise mutually agreed and stipulated in an Exhibit or Work
Assignment, Customer shall have the unrestricted right, at any time during the
Term, and in its sole discretion to terminate any Exhibit or Work Assignment
entered into between the Parties hereunder for its convenience, and without
cause, by providing CSC with at least one hundred and eighty (180) days prior
written notice stating Customer's exercise of its right to terminate such
Exhibit or Work Assignment for its convenience and the effective date of such
termination. Any Termination for Convenience Fees payable for termination
pursuant to this Section 15.4 shall be set out in each Exhibit or Work
Assignment.
15.5 OTHER TERMINATION BY CUSTOMER.
Customer may terminate this Agreement, any Exhibit or Work Assignment in whole
or in part, without prior notice to CSC, in the event that: (a) Customer is
required to do so by OSFI or any other regulator of Customer or any of its
Affiliates having jurisdiction; or (b) CSC has failed to comply with any
requirements stipulated by an applicable regulatory authority within a
stipulated time period falling within the scope of the Services, to Customer's
and such regulatory authority's requirements. Any termination by Customer in
such circumstances where CSC has failed to comply with any requirements
stipulated by an applicable regulatory authority shall not require payment by
Customer to CSC of any costs, penalties, liabilities or termination fees set
forth in an Exhibit or Work Assignment to this Agreement.
15.6 NOTICE OF TERMINATION.
Any termination hereof shall be by written notice of the terminating Party to
the other Party ("TERMINATION NOTICE"). Such Termination Notice shall set out:
(a) whether the termination is for convenience pursuant to Section 15.4;
or
(b) whether the termination is for cause, and if so, shall state the
Default or other event pursuant to which termination may occur
describing in reasonable detail, accuracy and completeness the
specific nature and dates of the Default or other event.
15.7 DISPUTE ESCALATION.
No party shall be permitted to terminate this Agreement, any Exhibit, Work
Assignment for cause unless and until any Dispute relating to the cause for
termination has been escalated to the senior executive representatives of the
parties in accordance with Article 17 hereof and such representatives have
failed to resolve the Dispute.
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16. TERMINATION ASSISTANCE
16.1 TERMINATION ASSISTANCE PERIOD.
Upon the expiration or termination of this Agreement, any Exhibit or Work
Assignment for any reason, CSC will co-operate fully with and assist Customer
and such other persons as Customer may designate so as to ensure the orderly
resumption of the provision of Services to Customer and/or the transfer of the
provision of some or all of the Services to one or more third party service
providers ("SUCCESSOR"), without any material interruption in the provision of
the Services. The parties shall use reasonable commercial efforts to allow
Customer to accomplish the transfer or resumption of the Services as soon as
reasonably practicable after the Termination Date, provided that the Termination
Assistance Period shall end no more than one (1) year after the Termination Date
(the "TERMINATION ASSISTANCE PERIOD").
16.2 INFORMATION AND DOCUMENTATION.
Within twenty (20) Business Days of receipt of notice of termination pursuant to
Section 15.6, CSC shall, subject to the provisions of Section 13.1(a)(iii),
provide to Customer or a third party service provider designated by Customer,
with reasonable access, electronic or otherwise, to business documentation and
rules, data, system output, system interface, technical documentation
descriptions of all Services Systems, technical information and technical
descriptive documentation, and documentation of current configurations to the
extent required to permit Customer or a third party service provider to assume
control of the provision of Services and, a current listing and copies of all
documented operational processes and procedures relating to the provision of the
Services as are maintained by CSC.
In addition to the foregoing, CSC shall promptly answer all reasonable inquiries
of Customer concerning the Services or the Services Systems, and provide such
additional information and documentation as Customer may reasonably request in
connection therewith. Notwithstanding any provision of this Agreement, the
information and documentation provided pursuant to this Article may only be used
in connection with the assumption of control and continued provision of the
Services by Customer or a third party service provider. Customer may, subject to
compliance with the provisions of Section 9.1(a)(iii), where applicable,
disclose such information and documentation to agents or contractors of Customer
or its Affiliates, including a third party service provider, for use solely for
the benefit of Customer and its Affiliates under agreements in writing which
require such persons to maintain all such information and documents in
confidence and use same solely for the purpose of providing the Services to
Customer and its Affiliates.
16.3 TRANSITION PLAN.
As soon as is practically possible after a Termination Notice, and in any event
not later than thirty (30) days after a Termination Notice, CSC shall, in
consultation with Customer and such other persons as Customer may direct,
commence in good faith and with all reasonable diligence to develop, as part of
the Termination Assistance Services, a transition plan (the "TRANSITION PLAN")
to facilitate the achievement of the objectives set out in Section 16.1. Such
plan shall set out in reasonable detail the specific tasks to be accomplished by
each party and a schedule pursuant to which the tasks are to be completed and
shall, at a minimum, provide for:
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(a) modifications to the Fees to take into account the planned reduction
in Services and any increased or decreased costs associated with
providing reduced Services over time; and
(b) the anticipated Conclusion Date.
The parties agree to provide to each other reasonably sufficient information to
create the Transition Plan. The parties agree that they shall revise and update
the Transition Plan:
(a) during the Termination Assistance Period; and
(b) in the event that any Change implemented hereunder has, in the
opinion of Customer acting reasonably, an impact on the Transition
Plan.
16.4 CONTINUED PROVISION OF THE SERVICES.
CSC shall continue to perform the Services, and Customer will transition off the
Services during such period or periods of time as specified in the Transition
Plan, but, in any event, not later than the end of the Termination Assistance
Period, on substantially the same terms and conditions as are applicable
immediately prior to the termination or transfer of this Agreement, any Exhibit
or Work Assignment. The times at which the Services (or portions thereof) are to
be ceased to be provided by CSC shall be specified in the Transition Plan.
16.5 SYSTEMS.
CSC and Customer shall reasonably agree on the disposition of any Systems
acquired by CSC for use in providing Services solely to Customer. In the event
Customer had funded the acquisition of any such Systems, Customer shall have the
option either to take title to and delivery of such Systems, or an assignment or
sublicense of any applicable Software Product, in accordance with the Transition
Plan or to set off against any payment required by this Agreement, any Exhibit
or Work Assignment to be made to CSC in an amount equal to the book value
calculated in accordance with GAAP or license fees of such System. All Systems
owned by or licensed to Customer which are in the possession of CSC shall be
returned to Customer in accordance with the Transition Plan.
16.6 TRAINING AND CONSULTING.
At the request of Customer from time to time, as part of the Termination
Assistance Services (and at time and material charges in effect between the
parties at such time), CSC shall provide training related to the Systems to be
transferred to Customer or its designee hereunder and such other Systems agreed
to be transferred, to Customer or such other persons as Customer may designate,
and otherwise make knowledgeable persons reasonably available to respond to
questions of Customer or its designee, so as to permit the orderly and efficient
continuation of the Services by Customer or by such other person or persons as
Customer may direct.
16.7 PAYMENT TO CSC FOR TERMINATION ASSISTANCE SERVICES.
In the event of the termination of this Agreement, an Exhibit or Work Assignment
by Customer for convenience pursuant to Section 15.4 or upon the expiration of
this Agreement, an Exhibit or
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Work Assignment, CSC shall be paid the following for providing the Termination
Assistance Services:
(a) relative to CSC's Vantage One Suite of Software Products, payment of
Fees set out in Schedule A for the continuation of the Services
pursuant to Section 16.4 or at rates otherwise agreed upon by the
parties in any such Exhibit or Work Assignment;
(b) payment for out-of-pocket expenses incurred in the provision of
media, copies of reports, documentation and the like required to be
produced solely pursuant to this Article 16;
(c) payment for the performance of the Termination Assistance Services,
to the extent such services are not provided using resources funded
through payment of the Fees set out in Schedule A, at CSC's time and
materials rates in effect as of the date of expiration, or at such
rates or fixed fee or fees as the parties may otherwise agree upon
and set out in the Transition Plan; and
(d) payment for any other material expenses, costs and fees that have
been pre-authorized by Customer.
16.8 MITIGATION OF COSTS.
The parties shall use their commercially reasonable efforts to mitigate all
costs in connection with the termination of this Agreement, any Exhibit or Work
Assignment and the performance of the obligations under this Article 16,
including costs in connection with preparation and implementation of the
Transition Plan and the transfer or disposition of assets contemplated
thereunder.
17. DISPUTE RESOLUTION
17.1 GOOD FAITH.
The Parties shall, in good faith, use their reasonable efforts to co-operate and
work together to preserve the intentions and mutual benefits contemplated by
this Agreement, any Exhibit or Work Assignment and to ensure the effective and
efficient performance of their respective terms and conditions.
17.2 DISPUTE RESOLUTION PROCEDURES.
Any dispute, controversy or claim between CSC and Customer relating to this
Agreement, any Exhibit or Work Assignment or the matters contemplated hereunder
(a "DISPUTE") shall be resolved in accordance with the Dispute Resolution
Procedures set out in Schedule H.
17.3 CONTINUATION OF SERVICES.
CSC acknowledges that the provision of the Services (including during any
post-termination period) under this Agreement, any Exhibit or Work Assignment is
critical to the business and operations of Customer. Accordingly, in the event
of any Dispute hereunder, CSC covenants that it shall continue to provide the
Services in accordance with the terms hereof, and Customer
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agrees that it shall continue to pay all Fees in accordance with the provisions
under this Agreement, An Exhibit or Work Assignment pending determination of the
Dispute.
18. FORCE MAJEURE
(a) No party shall be liable for a failure or delay in the performance
of its obligations pursuant to this Agreement, an Exhibit or Work
Assignment including a failure or delay of CSC in respect of the
provision of the Services, provided that such failure or delay:
(i) could not have been prevented by reasonable precautions;
(ii) cannot reasonably be circumvented by the non-performing party
through the use of alternate sources, work around plans or
other means; and
(iii) such failure or delay is caused, directly or indirectly, by
Fire, flood, earthquake, elements of nature or acts of God,
acts of war, terrorism, riots, civil disorders, rebellions or
revolutions in the jurisdiction where the Services are being
received and provided, or any other causes beyond the
reasonable control of such party,
(each, a "FORCE MAJEURE EVENT"). Upon the occurrence of a Force Majeure Event,
the non-performing party shall be excused from any further performance of those
of its obligations pursuant to this Agreement affected by the Force Majeure
Event only for so long as:
(iv) such Force Majeure Event continues and for so long after as
the affected party may reasonably require to alleviate the
effect of the Force Majeure Event; and
(v) such party continues to use commercially reasonable efforts to
recommence performance whenever and to whatever extent
possible without delay.
(b) The party delayed by a Force Majeure Event shall:
(i) immediately notify the other Party by telephone (to be
confirmed in writing within five (5) days of the inception of
such delay) of the occurrence of a Force Majeure Event, and
(ii) describe in reasonable detail the circumstances causing the
Force Majeure Event.
(c) If a Force Majeure Event affects CSC's provision of the Services to
an extent that, in Customer's determination, acting reasonably and
in good faith, materially and detrimentally affects Customer's
business for more than two (2) consecutive days or more than two (2)
days in any ten (10) day period, then Customer may either:
(i) procure such Services from an alternate provider or provide
such Services internally until CSC is able to provide the
Services; or
(ii) terminate this Agreement by providing CSC with a written
notice of termination.
(d) If CSC fails to provide the Services in accordance with an Exhibit,
Work Assignment or this Agreement due to a Force Majeure Event, the
Fees will be adjusted in a manner such that Customer is not
responsible for the payment to CSC of any Fees for Services that CSC
fails to provide. Where Services are partially performed or
provided, the Fees
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for the period of the Force Majeure Event will be adjusted on an
equitable basis taking into account, among other things, the length
and level of the Service degradation.
19. TAXES
INTENTIONALLY DELETED.
20. ASSIGNMENT
Neither party may transfer, whether by assignment, sublicense, merger,
consolidation, operation of law, or otherwise, any rights or obligations under
this Agreement without the other party's prior written consent, which shall not
be unreasonably withheld. The consent to any particular assignment shall not
constitute consent to further assignment. This Agreement shall be binding upon
the parties and their respective successors and permitted assigns. Any
transaction in contravention of this Section shall be null and void.
21. GOVERNING LAW AND LANGUAGE
This Agreement shall be governed by and construed and enforced in accordance
with the laws of the State of Delaware, without respect to principles regarding
conflicts of law, and shall benefit and be binding upon the parties hereto and
their respective successors and assigns. The parties hereto hereby irrevocably
submit to the jurisdiction of any United States district court in the State of
Delaware or any court in the State of Delaware, and any appellate court from any
thereof, in any action, suit or proceeding brought against them in connection
with this Agreement, and the parties hereto hereby irrevocably and
unconditionally agree that all claims in respect of any such action or
proceeding may be heard or determined in such State court or, to the extent
permitted by law, in such federal court. the parties hereto agree that a final
judgment in any such action, suit or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. To the extent permitted by applicable law, the parties hereto
hereby waive and agree not to assert by way of motion, as a defense or otherwise
in any such suit, action or proceeding, any claim that it is not personally
subject to the jurisdiction of such courts, that the suit, action or proceeding
is brought in an inconvenient forum, that the venue of the suit, action or
proceeding is improper or that the related documents or the subject matter
thereof may not be litigated in or by such courts. Recipient hereby attorns and
submits to the jurisdiction of the courts of the State of Delaware. Because the
parties agree that this contract is not a contract for the sale of goods, this
Agreement shall not be governed by any codification of Article 2,2A, or 2B of
the Uniform Commercial Code, the Uniform Information Transactions Act (as
amended or adopted from time to time), or any reference to the United Nations
Convention on Contracts for the International Sale of Goods. Customer agrees
that the Software Products are protected under the copyright laws of the United
States and of the Berne Convention. All communications between the parties, and
all Documentation and other materials, will be in English. Unless otherwise
stated in an Exhibit or Work Assignment executed hereunder, all monetary amounts
are in U.S. dollars and it is the responsibility of Customer to timely obtain
U.S. dollar funds, freely payable to CSC, to meet the obligations Customer has
assumed hereunder.
22. NON-HIRE
During the term of this Agreement and for one year after its termination,
neither party shall hire or enter into a contract for the services of an
employee, independent contractor, or former employee or
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independent contractor of the other party without first obtaining the other
party's written consent, except for former employees or independent contractors
whose employment or engagement has been terminated for over six (6) months.
23. ENTIRE AGREEMENT
This Agreement, including any Exhibits, Work Assignments, and written amendments
expressly made a part of this Agreement, states the entire understanding between
CSC and Customer concerning the subject matter of this Agreement, and supersedes
all prior oral and written communications. No amendment to this Agreement shall
be effective unless it is in writing and signed by both parties. No waiver of
any breach of any provision of this Agreement shall constitute a waiver of any
prior, concurrent or subsequent breach of the same or any other provisions
hereof. No waiver of any breach of any provision of this Agreement shall be
effective unless made in writing.
24. INDEPENDENT CONTRACTOR
All employees of CSC performing services hereunder for Customer shall be under
the exclusive direction and control of CSC and shall not be considered employees
or agents of Customer. CSC shall be an independent contractor as to Customer and
shall have authority to control and direct the performance of all services.
25. COUNTERPARTS
The signatures of the parties need not appear on the same copy of this
Agreement, so long as each party signs at least one copy of this Agreement and
the copies contain the same terms. The parties agree that an Exhibit, Work
Assignment or this Agreement may be executed by facsimile transmission and that
the reproduction of signatures by facsimile or similar device shall be treated
as binding as if originals and each party agrees and undertakes to provide the
other party with a copy of the Agreement bearing original signatures forthwith
upon demand by the other party.
26. NOTICES
Any notice, request, instruction or other communication at any time hereunder
required or permitted to be given or furnished by either party hereto to the
other shall be deemed sufficiently given or furnished if in writing and actually
delivered to the party to be notified at the address stated in this Agreement.
Either party may change its address for notice by written notice to the other
party.
27. CONSTRUCTION
The headings used herein are inserted only as a matter of convenience and for
reference and shall not affect the construction or interpretation of this
Agreement. Where context so indicates, a word in the singular form shall include
the plural, a word in the masculine form the feminine, and vice-versa. The word
"including" and similar constructions (such as "for example", "such as", and
"e.g.") shall mean "including, without limitation," throughout this Agreement.
The parties agree that the terms and conditions of this Agreement are the result
of negotiations between the parties and that this Agreement shall not be
construed in favor of or against any party by reason of the
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extent to which the party or its professional advisors participated in the
preparation of this Agreement.
28. SEVERABILITY
If any provision of this Agreement is held to be unenforceable, all other
provisions will nevertheless continue in full force and effect.
29. EXPORT CONTROLS
Customer shall promptly cooperate with CSC as reasonably necessary to comply
with the laws and administrative regulations of the United States relating to
the control of exports of commodities and technical data. Customer shall not
export or re-export directly or indirectly (including via remote access) any
part of the Software Products (including any CSC Confidential Information) to
any country for which a validated license is required for such export or
re-export (or the export or re-export is prohibited or otherwise restricted)
under the United States export laws. Customer shall further, at all times,
maintain itself in compliance with any applicable requirements of U.S. export
control laws, including all restrictions imposed on end users of the Software
Products. Customer shall be responsible for obtaining all permits or
registrations required by any governmental body or regulatory agency for the
import and use of the Software Products into any other country in which Customer
is permitted to use the Software Products, for Customer to make payments under
this Agreement, for this Agreement to be enforceable in any country in which
this Agreement must be registered, for CSC to perform services under this
Agreement, or for Customer personnel to attend training provided by CSC. If a
translation of this Agreement is required, Customer will provide the translation
at no cost to CSC.
30. THIRD PARTY BENEFICIARIES
Each party intends that this Agreement shall not benefit, or create any right or
cause of action in or on behalf of, any person or entity other than Customer and
CSC.
31. COVENANT OF FURTHER ASSURANCES
Customer and CSC covenant and agree that, subsequent to the execution and
delivery of this Agreement and without any additional consideration, each of
Customer and CSC shall execute and deliver any further legal instruments and
perform any acts which are or may become necessary to effectuate the purposes of
this Agreement.
32. AUDITS OF RECORDS AND DATA RELATIVE TO EXHIBITS FOR OUTSOURCING SERVICES
32.1 CSC AUDIT OBLIGATIONS.
(a) CSC is required to maintain a competent and independent audit function to
assess internal controls over its environment and compliance with all
CSC's internal security and information technology policies, plans and
procedures that relate to the Services and CSC's performance of this
Agreement. Audit reports and the audit function will be separately
conducted for each jurisdiction or Statement of Work unless specified
otherwise in a Statement of Work.
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(b) CSC will provide Customer with a summary of any control issues, and
associated corrective action plans, identified through any internal
controls and security audits performed by CSC's internal audit staff or a
third party regarding the Services, the Service Levels or Fees.
32.2 CUSTOMER ACCESS RIGHTS.
CSC must give Customer and its Personnel (including internal and external
auditors and advisers) reasonable access at all reasonable times and on
reasonable notice to:
(i) Customer Data and Customer Confidential Information in the
possession or control of CSC;
(ii) any Data Centre at which or from which CSC or its Subcontractors
supplies the Services;
(iii) CSC Personnel for the purposes of obtaining information in relation
to this Agreement; and
(iv) CSC's Services Systems, data, accounts, documents and records
relating to the Services, if Customer has a license under an Exhibit
hereto for the same,
in order to enable Customer to audit CSC's compliance with this Agreement and to
enable Customer to meet applicable contractual, regulatory and internal
management requirements. For greater certainty, at no time will CSC be expected
to provide access to any confidential information of other CSC customers that
may be located at the same Data Centre(s).
32.3 RIGHT TO AUDIT.
CSC agrees to assist Customer in meeting Customer's audit and regulatory
requirements. Customer and their respective internal and external professional
advisors and regulators, will have the right from time to time to conduct audits
of CSC and any Subcontractor or service provider thereof that provides services
relating to the Services. Without limiting the generality of the foregoing, such
audits may include:
(i) audits of the CSC Services System used, and practices and procedures
followed in providing the Services, including disaster recovery and
backup procedures;
(ii) audits of the use of any hardware, software, equipment and materials
licensed or leased by a third party to Customer or CSC and used to
provide the Services;
(iii) audits of the integrity of the Customer Data and Customer
Confidential Information;
(iv) any process or action that impacts on the integrity of the Customer
Data and Customer Confidential Information;
(v) audits of general controls, practices and procedures in respect of
compliance with security, privacy and quality management systems
used in respect of the Services;
(vi) penetration testing on the CSC Services System as required to
demonstrate compliance with regulatory and security requirements;
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(vii) audits of Service Levels and performance standards data, supporting
information and calculations;
(viii) audits of amounts charged to Customer, including Fees, Termination
for Convenience Fees, Pass through Expenses, Taxes and calculations
and their methodologies related thereto;
(ix) audits of CSC's performance of any or all of the Services;
(x) audits of the efficiency and effectiveness of the CSC Services
Systems;
(xi) audits of compliance with Applicable Laws and other requirements set
forth in this Agreement, including without limitation, health,
safety, privacy and environmental laws and requirements; and
(xii) audits of compliance with this Agreement, including without
limitation, all confidentiality and privacy obligations.
32.4 CSC ASSISTANCE.
For the purpose of complying with this clause, CSC must give Customer and its
Personnel any assistance they reasonably require. Customer and its Personnel
will comply with CSC's reasonable security requirements.
32.5 SUBCONTRACTORS.
CSC must ensure that each of its Subcontractors gives Customer and its Personnel
the same rights and agrees to fulfil the same obligations to Customer as set out
in this clause.
32.6 CSC AUDITING.
(a) On an annual basis, CSC must commission, and Customer agrees to
participate in the costs commensurate with the other receiving customers,
an independent and comprehensive audit of CSC's operations, controls and
procedures used in the performance of the Services by a suitably
qualified, independent auditor approved by Customer.
(b) The audit must be conducted in accordance with SAS70 with a Type 2 SAS 70
report. Customer has the right to review and approve or amend, as
necessary, any audit plan and the CSC must ensure Customer receives a copy
of the report. CSC must ensure that working papers relating to any such
audit will be made available to Customer and/or its regulators for review
upon request.
(c) CSC must provide to Customer:
(i) a complete copy of the audit report within 20 Business Days of the
conclusion of each annual audit; and
(ii) a detailed plan and schedule of the steps to be undertaken by CSC to
rectify any problems and/or implement any recommendations specified
in the report.
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(d) CSC must promptly take corrective action to rectify any problems
identified in CSC's annual audit report, which could reasonably be
expected to have an adverse effect on CSC's ability to perform the
Services in accordance with this Agreement.
(e) The cost of the audits shall be shared commensurately by Customer with all
other customers receiving the benefit of such audits, and all action taken
by CSC to remedy the problems identified by the audit is to be borne by
CSC.
32.7 COOPERATION IN AUDIT.
(a) CSC will ensure that its internal and external auditors co-operate and
consult with the auditors performing audits by or on behalf of Customer
and their respective advisors and regulators.
(b) The parties agree that they will work together to ensure there is minimal
disruption to the Services or CSC's business as a result of compliance
with this Article 32.
(c) All audits reports or summary of control issues provided under Section
32.1(b) shall be provided in English and a second language if specified in
an Exhibit or Work Assignment. To the extent Customer requests an audit
report in a language other than English, for a particular jurisdiction,
CSC agrees to provide such report at additional costs to Customer.
32.8 COSTS.
Customer will bear the costs of appointing an internal or external auditor to
conduct any audits in accordance with this Section.
32.9 RESPONSE TO AUDIT RESULTS.
(a) The parties shall develop and follow procedures for the sharing of audit
and regulatory findings and reports related to the provision or receipt of
the Services. CSC agrees to respond in writing to any observations made by
any audit, including any audit undertaken by Customer, and their
respective professional advisors and regulators, or CSC's internal or
external auditors, and to complete and communicate in writing to Customer
and the appointed auditor (if applicable) a plan for resolution of the
matter(s) identified to be completed, at CSC's cost, within the period of
time as requested by Customer or the auditor as applicable.
(b) Subject to the approval of Customer, CSC shall at its own cost and expense
diligently rectify all shortcomings identified in the course of an audit
provided such rectification is restricted to activities within the scope
of the Services. To the extent that the required rectification related to
activities and responsibilities not assumed by CSC as part of the
Services, such rectification shall be subject to the Change Request
Process.
32.10 RECORD RETENTION.
In respect of each record, document or invoice, CSC shall, until the later of
the expiration or termination of an Exhibit or Work Assignment and a period of 7
years or such period required by Applicable Laws from the end of the applicable
tax year in which such record, document or invoice is generated:
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(a) maintain complete and accurate records of, and supporting documentation
for, invoices submitted to Customer and all payments made by Customer, in
accordance with generally accepted accounting principles applied on a
consistent basis;
(b) maintain complete and accurate records of all:
(i) Service Levels and performance reports and measurements;
(ii) employee records;
(iii) records showing the extent of shared use of any CSC Services System;
(iv) dispositions, upgrades and modifications to the CSC Services
Systems; and
(v) relevant financial records (except records disclosing costs of
providing Services other than costs to be reimbursed by Customer);
and
(c) provide Customer, and their respective auditors and regulators, with
documentation and other information as may be reasonably requested to
verify the accuracy and compliance with the provisions of this Agreement.
33. DATA AND PRIVACY
33.1 OWNERSHIP OF DATA.
The Customer Data is and shall remain the sole and exclusive property of
Customer and/or its Affiliates, as applicable. CSC acknowledges that the
Customer Data is the sole and exclusive property, and the Confidential
Information of, Customer. Customer hereby grants to CSC, during the Term, a
royalty-free, non-transferable and non-exclusive licence to use the Customer
Data solely as permitted by an Exhibit, Work Assignment or this Agreement and
for the purposes of, and only to the extent necessary for, the provision of the
Services to Customer.
33.2 USE OF DATA.
CSC shall use the Customer Data solely for the purpose of providing the Services
and no other purpose, including its own internal business purposes that are
unrelated to the provision of the Services to Customer. CSC covenants that it
shall not, except as expressly permitted hereunder, disclose or otherwise permit
any third party to use, read or otherwise gain access to the Customer Data.
33.3 DATA PROTECTION.
Subject to CSC's specific obligations set forth in Schedule B, CSC shall ensure
that all Customer Data, where applicable, is maintained, accessed and
transmitted in a secure environment. CSC and Customer are each responsible for,
fully complying with any and all obligations applying respectively to them under
applicable laws that are applicable to data protection and personal information
protection laws ("PRIVACY LAWS") governing Customer Data, for advising each
other of any changes in such Privacy Laws and recommendations for continued
compliance. For greater certainty, CSC agrees that it shall provide Customer
with all reasonable assistance requested by and do all things reasonably
requested by Customer in the performance of the
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Services to assist Customer to comply with Privacy Laws.
33.4 TRANSBORDER DATA FLOWS.
In the event that CSC is provided with custody of Customer Data for the purposes
of providing Services under an Exhibit, Work Assignment or this Agreement, CSC
agrees that all Customer Data shall remain at designated CSC Sites and CSC may
not transfer any Customer Data, including to its Affiliates and/or any permitted
subcontractors, outside the designated CSC Sites without prior written notice to
Customer or where applicable, compliance with Applicable Laws. As between CSC
and Customer, Customer shall not, in any manner or to any extent whatsoever, be
liable or responsible for any use or transmission of Customer's Data outside any
jurisdiction in which Services are provided without the prior written consent of
Customer.
33.5 DATA RETRIEVAL AND RETURN.
Where CSC does, for any reason, have custody of Customer Data, Customer shall be
permitted access to Customer Data at all times, which access shall not be
unavailable or restricted except where such limitations on access are required
by previously documented security requirements or by a period of repair or
maintenance provided for in the Customer Agreement. CSC shall at the request of
Customer at any time or on termination or expiration of the Agreement, including
any Exhibit or Work Assignment, as the case may be, promptly return to Customer,
in the format or formats and on the media mutually agreed upon by Customer and
CSC, all Customer Data in the custody of CSC or such portion of it as has been
requested by Customer. If and to the extent CSC's return of such Customer Data
would prevent CSC form performing any Services hereunder, CSC's obligation to
provide the Services so affected shall be temporarily suspended until such time
as Customer restores access to such Customer Data to CSC or makes other
accommodating arrangements.
33.6 INTENTIONALLY DELETED.
34. BUSINESS RECOVERY PLAN RELATIVE TO EXHIBITS FOR OUTSOURCING SERVICES
A business recovery plan specific to Customer has been developed, implemented
and previously reviewed and approved by Customer (the "Business Recovery Plan").
The Business Recovery Plan will be maintained by CSC during the term of all
Exhibits subject to OSFI. The cost of this Business Recovery Plan is included
within terms of the relevant Exhibit(s). CSC will follow the Business Recovery
Plan in conjunction with any recovery plan processes of CSC outlined within its
existing procedures. If in the reasonable opinion of Customer or its regulators
or auditors, any such Business Recovery Plan is insufficient to minimize the
uninterruption of the provision of service, CSC shall make and implement such
amendments to such plan as are agreed to by both parties in writing and all
additional costs shall be borne by Customer, unless otherwise agreed to in
writing executed by authorized representatives of both parties. CSC shall
establish and implement the Business Recovery Plan as required to minimize the
uninterruption of the provision of service to Customer and to prevent the loss
of Customer Confidential Information. CSC agrees that Business Recovery Plan
will be reviewed and tested at least annually and that Customer shall be
provided with the opportunity to participate in such testing and to review
documented results of such testing."
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35. OUTSOURCING
CSC acknowledges that Customer currently outsource, and may continue to
outsource, its information technology systems and infrastructure to third party
service providers. Nothing in this Agreement is intended to limit or otherwise
affect Customer's outsourcing arrangements or right to outsource its information
technology systems and infrastructure. For greater clarity, Customer shall have
the right, subject to compliance with the provisions of Article 13.1(a)(iii)
herein, to outsource the hosting of Software Products licensed to Customer under
an Exhibit or this Agreement and to have such third party outsourcer provide the
Services that are currently being provided by CSC.
36. SURVIVAL
Those provisions of this Agreement that by their terms survive, or by their
nature are intended to survive the termination of this Agreement will survive
any termination hereof and remain in full force and effect.
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APPENDIX 1
TO THE
CSC CUSTOMER AGREEMENT
BY AND BETWEEN
COMPUTER SCIENCES CORPORATION
AND
THE MANUFACTURERS LIFE INSURANCE COMPANY
NON-DISCLOSURE AND NON-USE AGREEMENT FOR CONSULTANT TO CUSTOMER
COMPUTER SCIENCES CORPORATION ("CSC"), _____ ("Customer"), and _____
("Consultant"), hereby enter into this Non-Disclosure and Non-Use Agreement
("Agreement"), which shall be effective, after signature by Customer and
Consultant, upon execution by CSC (the "Effective Date"):
1. RECITALS
Customer is a licensee or prospective licensee of all or part of the following
computer software products: _______ (collectively, the "Software Products").
Consultant acknowledges that the Software Products (including the program code,
specifications, logic, design, ideas, techniques, know-how and procedures
contained or revealed in any of the foregoing), all related documentation, any
information about the Software Products (tangible or intangible, machine or
human readable), and the terms of this Agreement (collectively the "Confidential
Information") are confidential and proprietary trade secrets of CSC or its
licensors. Consultant wishes to have access to Confidential Information and use
the Software Products in order to perform the following services for Customer
(the "Services").
[GENERALLY DESCRIBE THE SERVICES TO BE PERFORMED. HERE ARE SOME EXAMPLES OF
SERVICES DESCRIPTIONS:
Consultant will create and test a modified version of the Software Products in
order to cause them to [DESCRIBE THE MODIFICATION'S FUNCTIONALITY].
Consultant will provide general consulting and modification services to the
Software Products, which may include interfacing with other software.
Consultant will create interfaces between Customer's licensed copy of the
Software Products and the software known as [NAME OF SOFTWARE ON THE OTHER END
OF THE INTERFACE]. For this purpose, Consultant's access shall be limited to the
[CHOOSE ONE OR MORE: "application programming interfaces described in the
documentation for", "copybooks that are part of, OR "extract files produced by"]
the Software Products.
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Consultant will convert Customer's data between the Software Products and the
software known as [NAME OF SOFTWARE ON THE OTHER END OF THE CONVERSION] For
this purpose, Consultant's access shall be limited to the [CHOOSE ONE OR MORE:
"application programming interfaces described in the documentation for"
"copybooks that are part of" OR "extract files produced by"] the Software
Products.
Consultant will evaluate the Software Products for Customer's internal use. For
this purpose, Consultant's access shall be limited to examining any materials
provided by CSC for the purpose of such evaluation and the Software Products'
documentation, reports, and screens.]
2. LICENSE (MODIFICATION PERMITTED)
CSC grants Consultant a non-exclusive, non-transferable, personal term license
to use copy, modify, access, and record the Software Products and the
Confidential Information, but only at Customer's premises, only to the extent
that such are disclosed by Customer or CSC to Consultant, and only as reasonably
necessary to provide the Services to Customer. Consultant's permitted use of the
Software Products and the Confidential Information is "AS IS" and without
warranty of any kind.
3. LICENSE (MODIFICATION NOT PERMITTED)
CSC grants Consultant a non-exclusive, non-transferable, personal, term license
to use, copy, access, and record the Software Products and the Confidential
Information, but only at Customer's premises, only to the extent that such are
disclosed by Customer or CSC to Consultant, and only as reasonably necessary to
provide the Services to Customer. Consultant's permitted use of the Software
Products and the Confidential Information is "AS IS" and without warranty of any
kind. Consultant shall not perform any modification to the Software Products.
4. PERMITTED DISCLOSURES
CSC consents to the disclosure by Customer to Consultant of such Confidential
Information as is reasonably necessary for Consultant to perform the Services.
Consultant may disclose the Confidential Information to its own employees and to
employees of Customer as reasonably necessary in performing the Services for
Customer. Consultant and its employees shall not otherwise disclose, whether
written or oral or permit access to any Confidential Information to anyone other
than such employees of Consultant and Customer.
5. CONFIDENTIAL RELATIONSHIP
Any disclosures of Confidential Information to Consultant shall be made and
received in the strictest confidence. Before disclosing any Confidential
Information to its employees, Consultant shall instruct its employees to comply
with the terms of this Agreement. Consultant and Customer shall take all
appropriate action, whether by supervision, instruction, agreement or otherwise,
to ensure the protection, confidentiality and security of any Confidential
Information in Consultant's possession.
6. NON-HIRE
Consultant acknowledges that the foregoing assurances are a condition precedent
of its access to the Software Product hereunder. Consultant agrees not to hire
any of CSC's employees that have participated in developing, enhancing,
maintaining or servicing the Software Products during the
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term of the license granted in Section _ above, and for one (1) year following
its termination. Consultant stipulates and agrees that during the term of this
Agreement, and as long as any Confidential Information disclosed to Consultant
remains confidential, assigning Consultant's personnel receiving disclosure of
the Software to develop or service computer software programs in a manner that
in any way whatsoever violates or infringes upon the intellectual property
rights of CSC and/or its licensors with respect to such disclosed Software,
including without limitation their copyright, patent, trade secret, or any other
proprietary rights in the Software Products will constitute adequate evidence
that Consultant did not exercise sufficient care in protecting CSC's Software
Products from unauthorized use or disclosure.
7. TITLE
Without further consideration, Consultant assigns to CSC all right, title,and
interest (including moral rights) in and to all work product that Consultant
prepares in performing Services for Customer and that either is a derivative
work or copy of any part of the Software Product or their documentation or
incorporates any Confidential Information. Customer hereby consents and agrees
to the terms and conditions of this Section. Such assignments shall be effective
irrevocably as of the creation of such work product, which shall be considered
part of the Software Product or Confidential Information under this Agreement as
of such time. Consultant further agrees to perform, upon the request of Customer
or CSC during or after the term of this Agreement, any further acts as may be
necessary or desirable to transfer, perfect and defend CSC's ownership of such
work product. To the extent that Customer would obtain any rights in conflict
with the foregoing assignment (whether by contract, assignment, or operation of
law), Customer waives such rights in favor of CSC. CSC grants to Customer a
non-exclusive license to use any such work product that Consultant delivers to
Customer. The license is granted on the same terms and conditions as Customer's
license to the Software Product related to the work product, except that CSC
DISCLAIMS ANY WARRANTY OR INDEMNITY WHATSOEVER CONCERNING THE WORK PRODUCTS,
INCLUDING THE WARRANTIES, EXPRESS OR IMPLIED, OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE WORKMANLIKE PERFORMANCE, TITLE, AND NON-INFRINGEMENT. CSC
reserves all rights not expressly granted to Consultant or Customer herein.
8 EXCEPTIONS
Confidential Information does not include any information which (a) is
rightfully known to Consultant without restriction on disclosure or use prior to
disclosure to Consultant by CSC or Customer; (b) becomes publicly known in the
software industry through no wrongful act of Consultant, excluding information
contained in patents pending or issued, other than patents, if any, which are
disclosed hereunder; or (c) is approved for release by written authorization of
CSC. The existence of a copyright notice will not cause, or be construed as
causing, any part of the Software Product to be a published copyrighted work or
to be in the public domain.
9. NON-USE
Consultant agrees not to, and this Agreement does not license Consultant to, (a)
copy or record any Confidential Information except as reasonably necessary in
performing the Services for Customer, (b) use or access any Confidential
Information for any purpose other than providing the Services to Customer (such
as providing similar services to other licensees of the Software Product), (c)
remove any materials containing Confidential Information from Customer's
premises or (d) modify, enhance, reverse engineer, delink, disassemble, or
decompile any Software Product disclosed to Consultant in object code only.
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10. REMEDIES
During normal business hours, CSC may enter upon the premises of Customer and
Consultant and inspect documents, data, and software in order to review
compliance with the provisions of this Agreement. Consultant agrees that it is
fully responsible for the actions of its employees with respect to the
Confidential Information. Customer and Consultant agree to indemnify CSC and its
licensors for any damages, costs or expenses (including court costs and
reasonable attorneys' fees) suffered as a result of any breach of this Agreement
by Consultant. Customer and Consultant agree that, in the event of breach or
threatened breach of this Agreement, CSC may seek injunctive or equitable relief
without the necessities of posting bond or proving that it has no adequate
remedy at law. The parties' addresses for purposes of notice and service of
process are as set out over their respective signatures below. CSC's licensors
may directly enforce the terms of this Agreement as express third party
beneficiaries hereto to the extent of such licensors' interest in the Software
Product or Confidential Information.
11. WARRANTY
Consultant warrants that it has the right to provide the services described
herein and that the provision of such services will not result in the
infringement of the rights of third parties. Consultant shall defend CSC, at
Consultant's sole cost and expenses, against all claims arising from such actual
or alleged infringement. Consultant shall fully indemnify CSC for any of CSC's
liabilities, costs or expenses (including, but not limited to any attorney's
fees or related court costs) arising from Consultant's breach of any of
Consultant's obligations delineated in this Agreement.
12. TERM
The licenses and consent that CSC grants by this Agreement shall terminate on
the earliest of (a) Consultant's completion of the Services, (b) Consultant's
material breach of this Agreement or any other agreement intended to protect
CSC's proprietary information, or (c) termination or expiration of Customer's
license to the Software Product to which the Services relate. Consultant shall
have no access to Confidential Information after such date. Within ten (10) days
after such date, Consultant shall destroy or deliver to Customer all copies or
records of Confidential Information in Consultant's possession. Consultant's
obligations under this Agreement shall survive termination of this Agreement and
shall continue as long as any Confidential Information disclosed to Consultant
remains confidential; provided, however, Consultant's obligations under this
Agreement shall continue if Confidential Information enters the public domain by
way of a violation of Consultant's obligations under this Agreement.
13. ASSIGNMENT
Neither Customer or Consultant may assign, sublicense, or otherwise transfer,
voluntarily, by operation of law or otherwise, any rights or obligations under
this Agreement, except with CSC's prior written consent, which consent may be
withheld at the discretion of CSC. Any transaction in violation of this Section
shall be null and void.
14. INTERPRETATION
This Agreement shall be governed by the internal laws of the State of South
Carolina, United States of America, exclusive of choice of law principles, its
codification of Article 2, 2A, or 2B of the
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Uniform Commercial Code, and any reference to the United Nations Convention on
the International Sale of Goods. The Software Product and their documentation
are copyrighted works protected by the United States Copyright Act and the Bern
Convention. No amendment to this Agreement shall be effective unless it is in
writing and signed by all parties. If any provision of this Agreement is held to
be unenforceable, all other provisions will nevertheless continue in full force
and effect. No waiver by either party of any term or condition of this
Agreement, in any one or more instances, shall be deemed to be or construed as a
waiver of the same term or condition on any future occasion or of any other term
or condition of this Agreement. This Agreement supersedes any and all prior
representations, conditions, warranties, understandings, proposals, or previous
agreements between the parties hereto, oral or written, relating to the subject
matter hereof and constitutes the sole, full and complete agreement between the
parties.
CUSTOMER CONSULTANT CSC
COMPUTER SCIENCES
CORPORATION
00000 XXXXXX XXXXXXXXX
XXXXXXXXXX,XX 00000
By: By: By:
----------------------- ----------------------- -------------------------
(Authorized Signature) (Authorized Signature) (Authorized Signature)
Name: Name: Name:
----------------------- ----------------------- -------------------------
(Printed) (Printed) (Printed)
Title: Title: Title:
----------------------- ----------------------- -------------------------
Date: Date: Date:
----------------------- ----------------------- -------------------------
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APPENDIX 2
TO THE
CSC CUSTOMER AGREEMENT
BY AND BETWEEN
COMPUTER SCIENCES CORPORATION
AND
THE MANUFACTURERS LIFE INSURANCE COMPANY
Software Competitor:
1. SOLCORP
2. Navisys
3. LIDP
4. Admin Server
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SCHEDULE A-FEES
I. CSC PERSONNEL TIME & MATERIALS RATES.
For Services related to CSC's Vantage One suite of Software Products, CSC and
Customer agree to use the applicable personnel time and materials rates set
forth below in either the Minimum Annual Commitment Table or Volume Discount
Table, or if the resource commitment by Customer is less than four (4)
person-months, at the ad hoc rates below, in each case as follows:
Each personnel billing period shall commence April 1 of each year and continue
through the last day of March the next year.
If Customer desires to use the rates in the Minimum Annual Commitment Table, it
shall provide CSC in writing with the minimum amount of personnel Services
Customer agrees to use during a billing period (the "Minimum Annual Commitment"
or "MAC") on or before April 1, of each new billing period. (1) The applicable
time and materials rates for each such billing period corresponds to the MAC
designated by Customer in April of each year. Customer may increase the MAC on
the first day of a month during a billing period and the corresponding reduced
rate will be prospectively applied. Customer shall pay CSC the difference
between the MAC and the amount actually paid to CSC for personnel Services, if
any, in April following the end of each billing period.
If Customer does not report its elected MAC by April of a year, it shall be
assumed by the parties that Customer does not desire to use the Minimum Annual
Commitment Table, and the applicable rates in the Volume Discount Table shall
apply. The rates in the Volume Discount Table are applied based upon the actual
number of full time equivalents (FTE) used in a month. The rates used in the
Volume Discount Table are sequentially applied and re-established on a monthly
basis.
Notwithstanding anything to the contrary, if Customer's resource commitment on a
particular project is less than four (4) person-months of Services, the time and
materials rate shall be $15,000 per person-month, and the time and materials
rate for all subject matter experts shall be $125 per person-hour.
For purposes of this Pricing Schedule No. 1, one time and materials person-month
shall mean the full-time Services of one (1) CSC employee for nineteen (19) days
per calendar month working seven and one-half (7 1/2) hours per day. At CSC's
discretion, up to thirty percent (30%) of resources may be staffed from CSC's
CSC-India facility.
-----------
1 For April 1,2004 through March 31, 2005, Customer's MAC is $7,500,000,00
of CSC's personnel Services.
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MINIMUM ANNUAL COMMITMENT TABLE
MAC MONTHLY TIME & Materials Rates
----------------------------- ------------------------------
[*] [*]
[*] [*]
[*] [*]
[*] [*]
[*] [*]
VOLUME DISCOUNT TABLE
0-10 FTE [*]
11 - 20 FTE [*]
00 - 00 XXX [*]
00 - 00 FTE [*]
41 and greater FTE [*]
II. INFRASTRUCTURE & PRODUCTION SUPPORT DISCOUNTS
All computer usage will be charged at CSC's then current and standard Time and
Materials Rates discounted as follows:
- Sixty-five percent (65%) discount on first $50,000.00 of standard
rates; and
- Seventy percent (70%) discount of next $50,000.00 of standard rates;
and
- Seventy-five percent (75%) discount for over $100,000.00 of standard
rates.
CSC's current standard Time & Materials Rates are set forth below. Such rates
are subject to adjustment to reflect changes (increases or decreases) to CSC's
computer usage rates:
- CPU RACK RATES $903/CPU Hour
- DASD RACK RATES $912/Gigabyte Month
III. MID-TIER DEVELOPMENT MACHINE CHARGES
Machine charges for development and system testing conducted in a distributed,
as opposed to a mainframe, environment shall be provided at a flat hardware
usage fee of $8,000.00 per month for up to ten (10) CSC persons, with each
additional person increasing the rate by $[*] per month. For greater clarity,
the incremental charge based on additional CSC persons shall not apply to the
Customer's Japanese Affiliate, Manulife Life Insurance Company.
IV. FEE INCREASES DURING TERM. During each year of the Agreement, the fees set
out in this Schedule A shall increase by the annual percentage increase in the
Consumer Price Index for Urban Consumers, All Cities Average, For All Items
(1984-1986 = 100), as published by the Bureau of Labor Statistics of The United
States Department of Labor ("Index") during the most
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recent 12 month period for which figures are available, on each anniversary of
the effective date of this Exhibit. In the event the Bureau of Labor Statistics
of The United States Department of Labor shall stop publishing the Index or
shall substantially change the content or format thereof, the parties shall
substitute another comparable measure published by a mutually agreeable source.
However, if such change is merely to redefine the base year for the Index, the
parties shall continue to use the Index but shall make such conversions as are
necessary. At least ninety (90) days prior to such increase, CSC shall give
Customer written notice of this increase.
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SCHEDULE B - CUSTOMER DATA AND SYSTEM SECURITY POLICIES
A) INFORMATION SECURITY POLICY
INFORMATION A VITAL ASSET
All information that we collect, create or use to run our business is a vital
asset of Manulife Financial. We must safeguard information according to its
value, in a cost-effective manner.
EVERYONE'S RESPONSIBILITY
We All share a responsibility to safeguard information in all its aspects, from
its creation through its useful life and authorised disposal. Manulife
Financial's Code of Business Conduct and Ethics requires that we must all be
part of the security management process.
PURPOSE
The overall purpose of this Policy is to support the business goals and
objectives of Manulife Financial and comply with laws and regulatory
requirements under applicable jurisdictions. Without the proper security
safeguards, Manulife Financial could suffer loss of customer and investor
confidence, market share, competitive advantage and ultimately, jobs.
SCOPE
Manulife Financial's Information Security Policy applies to:
- The representation, use or dissemination of information in any form
or manner.
- Information resources, which are the business processes and the
manual or automated information systems we use to collect, store,
access, transmit, communicate, disseminate and dispose of
information.
- Information processed or hosted within Manulife Financial's
information processing facilities or with an external service
provider.
This Policy applies to all employees and operating units of Manulife Financial
Corporation and The Manufacturers Life Insurance Company and their subsidiaries
and affiliates, regardless of location.
Representatives and associates of Manulife Financial, contractors or any other
third parties to Manulife Financial, who are provided access to information or
information resources, must abide by this Policy under the terms of their
contract or arrangement with Manulife Financial. This Policy will be reinforced
by standards, guidelines and processes which, when approved, have the same scope
and authority as if they were included in this document.
GUIDING PRINCIPLES
INFORMATION SECURITY RISK
For the purposes of this Policy, information security risk is defined as the
likelihood of an undesirable event and the consequences thereof, which could
lead to the loss or compromise of information. Such a loss or compromise may
happen due to unauthorised disclosure, destruction, removal, modification or
interruption of information or information resources.
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SECURITY RISK ASSESSMENT
The information security risks related to each division's projects and systems
must be identified, assessed, documented and acknowledged. The assessment of
information security risks and the determination of safeguards must be an
integral part of the implementation of all systems and projects, including
outsourcing agreements.
EXTENT OF SECURITY
The extent of information security to be applied will depend on the sensitivity
of the information to Manulife Financial and an assessment of the information
security risks. This requirement for security shall apply irrespective of
whether the information is printed, in electronic or other form.
INFORMATION CLASSIFICATION
Information, whether printed, in electronic or other form, must be classified
according to its sensitivity requirements into one of the following information
categories: Public, Internal, Sensitive or Restricted.
Each category has specific rules for its use, storage and disposal. By default,
all unclassified information will be deemed as 'Sensitive'. The Information
Security Management Program, defined hereinafter, has prescribed standards and
guidelines for information classification and handling.
INFORMATION SECURITY RISK MANAGEMENT
All information systems, whether developed internally or externally, must
incorporate adequate safeguards to mitigate and /or manage the assessed risks.
Information should only be disclosed to or accessed by an authorised individual,
process or entity at authorised times in an authorised manner. Information must
be maintained in an accurate and reliable manner and be available for authorised
use. For the purposes of this Policy, "authorised" means the method of
permitting access, as determined by Manulife Financial. Permission to access
must be based on valid business need and the principle of least privilege set
out in the Information Security Glossary .
We must protect against, detect and recover from unauthorised or undesirable
disclosure, modification, destruction, or use of information and resources,
whether accidental or intentional. We must act in a timely, co-ordinated manner
to prevent or respond to security incidents.
When accessing shared information or information resources, the accountability
of an individual, process or entity must be established and maintained at all
times. Information systems must be monitored with an accompanying access log to
report the actions performed to modify, add or delete information.
The safeguards must compensate for the risks inherent to the internal and
external physical environment where information systems are stored, transmitted,
or used.
Adequate safeguards must be in place and operating as intended to ensure that
processing is complete, accurate and authorised to provide the required level of
processing integrity.
Assurance processes must be in place to assess the adequacy and the
effectiveness of safeguards to manage information security risks. They provide
the grounds for confidence that safeguards are in place and working as intended.
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At the minimum, safeguards must be in accordance with the standards and
guidelines, as they exist and are amended from time to time.
PRIVACY
Personal information must be kept confidential and used only for the purposes
for which it was collected. It must be disclosed only to those who have the
right to the information or when the law requires disclosure. (Refer to Manulife
Financial's Statement of Corporate Privacy Principles(xxxx://xxx 1
..xxxxxxxx.xxx/xxxxxxxxx/xxxxxxxxx0.xxx/Xxxxxx/xxxxxxx.xxxx).
NETWORK SECURITY
All information stored, transmitted or processed within networks must be
secured, consistent with the level of risk and potential for harm that may
result from disclosure, alteration, loss of availability or misuse. All
connections between Manulife Financial's internal networks and other external
networks must be made via an appropriately secured connection.
Where necessary or desired, such a secured connection may also be placed between
separate internal networks. To be classified as an internal network, the network
must be entirely under the care and control of and be subject to review by
Manulife Financial and adhere to this Policy and its supporting standards and
guidelines.
USE OF RESOURCES
All information and information systems are for Manulife Financial business.
This includes all systems and equipment Manulife Financial owns or leases as
well as all remote computing services it uses, including access to the Internet.
We must direct our efforts to Manulife Financial's business while at work, and
must use these resources only for management approved activities.
COPYRIGHT LAWS
Many materials we use in the course of our business at Manulife Financial are
protected by copyright laws. Our Code of Business Conduct requires us to respect
copyright laws. We must not operate, modify, transfer or copy programs or
documentation, except as stated in a license agreement.
CONTINUITY OF BUSINESS OPERATIONS
It is Manulife Financial's policy to ensure for the continuity of business
operations and to be able to recover from unexpected business interruptions in a
timely manner. (Refer to the Business Continuity Program (link ->) managed by
the Corporate Business Continuity Planning Group).
KEY ROLES AND RESPONSIBILITIES
SENIOR MANAGEMENT
Manulife Financial manages information and is ultimately responsible for its
security. Senior management supports the requirements for this Policy and for
creating the Information Security Management Program for Manulife Financial to
identify, manage and monitor information security risks.
As the owner of this Policy, the Chief Information Officer will ensure that the
overall effectiveness of the Program is monitored and that it continues to meet
the needs of Manulife Financial.
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Senior management is accountable for implementing and sustaining the Program
within their respective divisions. Each division is responsible for identifying
the information security risks and managing them day-to-day in accordance with
this Policy. Each division is also responsible for supporting the awareness of
security issues and for enforcing compliance to this Policy within its division.
In order to facilitate the process of information security management, the key
roles of INFORMATION OWNER, CUSTODIAN and USER must be established.
INFORMATION OWNER
Each division should assign INFORMATION OWNERS, as required, to manage
information security in accordance with their business requirements and this
policy. At a minimum, each information system must be assigned an Information
Owner. The Information Owner is ultimately responsible for:
- Ensuring that security risk assessments are carried out and
safeguards to mitigate the assessed risks are implemented, before
authorising the completion of their projects or information systems.
These assessments must be documented, give due consideration of all
relevant viewpoints and technical capabilities to enhance
information security.
- The determination of value of the information by assigning the
proper information classification, including a periodic review to
determine whether a change of classification is needed.
- The awareness of security issues affecting the projects and systems
that process information required for their business operation,
including an understanding of the control weaknesses that may exist
and the corrective actions they deem necessary or have planned to
manage them.
- Facilitating access for those who have a business need and could
benefit from the information, including ensuring that access
requirements are specified and communicated to the Custodians.
- The authorisation for disposal of information after useful life
either for its safekeeping or its destruction. (Refer to Manulife
Financial's Record Retention and Disposition Schedules).
- Ensuring that a business continuity plan is developed, documented,
tested and made available. (Refer to the Business Continuity Program
managed by the Corporate Business Continuity Planning Group).
CUSTODIAN
The Custodian is responsible for protecting the information systems under their
custody in accordance with the Information Owner's specific directions. At a
minimum, the Custodian will:
- Provide a secure processing environment that can appropriately
protect the integrity, confidentiality and availability of
information and ensure accountability of the user, process or
entity.
- Administer access to information as authorised by the Information
Owner.
- Administer the disposal of information as authorised by the
Information Owner and in accordance with the approved Record
Retention and Disposition Schedules.
USER
The USER is the individual or organisation, who has been authorised access to
the information. At a minimum, the Users will:
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- Use the information and information systems only for the purpose
intended. Users must understand information sensitivity, and its
significance for competitiveness and individual privacy, and so
handle information and information systems with due care.
- Adhere to this policy and ensure that the integrity, confidentiality
and availability of the information accessed are consistent with the
Information Owner's expectations.
INFORMATION SECURITY GOVERNANCE
Information security management is a critical area that requires central
intervention and governance. The Chief Information Security Officer will provide
leadership, guidance and direction for enterprise-wide governance of information
security management at Manulife Financial. The Information Security Office has
the authority to define, and periodically modify information security standards,
guidelines and processes, which support this Policy. They form part of the
overall INFORMATION SECURITY MANAGEMENT PROGRAM (see the DATABASE) to enable
compliance to this Policy.
INFORMATION SECURITY MANAGEMENT PROGRAM
KEY ELEMENTS OF THE PROGRAM
The key elements of the Information Security Management Program are as follows:
- ROLES AND RESPONSIBILITIES: Definition of roles and responsibilities
for the implementation of this Policy. (Refer to Organisational
Framework ).
- STANDARDS AND GUIDELINES: Mandatory standards and guidelines, as
they exist or are amended from time to time, define the minimum
requirements for information security, commensurate with varying
levels of risk. (Refer to Information Security Standards and
Guidelines).
- SECURITY AWARENESS: Communication and sustenance of awareness of
security issues, including responsibilities to all concerned under
this Policy and the supporting standards, guidelines and processes.
- SECURITY RISK ASSESSMENT: Processes for assessing information
security risks and determining safeguards have been prescribed. The
Information Security Officer should review such security risk
assessments. (Refer to Info-Risk Assessment Methodology).
- MANAGEMENT OF ISSUES: There may be circumstances when the assigned
Information Owner may wish to accept the risk and request an
exemption to some aspect of this Policy or its supporting standards
and guidelines. Such requests for security exemption must be
supported by an appropriate risk assessment and submitted in writing
to the Chief Information Security Officer for review and
concurrence. The procedure for security exemption is prescribed.
(Refer to Info-Risk Assessment Methodology ).
- SECURITY INFRASTRUCTURE: Improvements to corporate security
infrastructure to support this Policy.
- CONTINUING EFFECTIVENESS: Metrics for monitoring the effectiveness
of this Policy and reporting the state of security will be
established. In addition, Audit Services will review the
effectiveness and adequacy of safeguards through Key Risk Audits and
Key Risk Reviews and report to senior management and the Audit
Committee semi-annually.
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COMPLIANCE
All of us, in our roles as Information Owner, Custodian, or User, must comply
with this Policy and the standards, guidelines and processes defined under the
Policy. Non-compliance will be deemed a breach of our Code of Business Conduct
and subject to actions prescribed therein.
REVIEW
This Policy will be evaluated and revised as required by internal, external and
regulatory developments.
WHERE TO GO FOR HELP
If you have doubts about a particular situation, questions or concerns on
information security that cannot be resolved by your immediate management,
please feel free to contact the IS SERVICE DESK 1-888- 990- 9917 in case of an
emergency. Otherwise you may contact the INFORMATION SECURITY OFFICE, through
e-mail to SECURITY AWARENESS on Lotus Notes.
B) INTERNET USE POLICY
INTRODUCTION
Employees represent the Company to the outside world while accessing the
Internet. Each individual is responsible for judiciously representing Manulife
Financial and for ensuring that the Company's interests are protected,
consistent with this policy and the Code of Business Conduct.
SCOPE
Manulife Financial's Internet Use Policy applies to all employees using
company-provided access to the Internet, including any remote connections paid
for by Manulife Financial. All other users, who are authorised Internet access,
must comply with this policy under terms of their contract, agreement or
arrangement with Manulife Financial.
POLICY STATEMENTS
PRIMARILY FOR BUSINESS: Internet access is a privilege extended by Manulife
Financial, which may be withdrawn at anytime. As a productivity enhancement
tool, Internet access is primarily for business purposes. Incidental personal
use of the Internet is permissible so long as:
- it does not consume more than a trivial amount of resources;
- does not interfere with employee productivity; .
- does not pre-empt any business activity.
PROFESSIONALISM: Employees must use the Internet in a professional manner and
must not engage in any activity, which contravenes Manulife Financial's Code of
Business Conduct.
IMPORTANT RESTRICTIONS: Employees are forbidden from using the Company-provided
Internet access for personal business, for personal charitable endeavours or for
amusement/entertainment purposes. Employees are reminded that access to the
Internet should never create either the appearance or the reality of
inappropriate use. Employees must not access, download, use, share, store,
forward, print, communicate or create information that is unethical, illegal,
prohibited or inappropriate. Although not an exhaustive list, prohibitions
include sites, images, messages or
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materials that are obscene, pornographic, sexual, racial, gambling or drug
related, violent, defamatory, derogatory, discriminatory or harassing in nature.
WHAT IF SOMEONE VIOLATES THIS POLICY: Manulife reserves the right to terminate
the employment (on a for cause basis) or the business relationship with any
individual where that individual is in violation of the important restrictions
identified in # 3 above. Manulife Financial will not defend or indemnify any
employee or individual being sued or prosecuted in connection with any
inappropriate use of the Internet privileges. Manulife Financial retains the
right to remove from its information systems any material it views as offensive
or potentially illegal. Other policy violations may also result in disciplinary
action, up to and including dismissal or termination of relationship.
PRIVACY: Employees are hereby notified that security measures are in place to
monitor Internet use. The Information Security Office periodically monitors
Internet web usage. Due to these monitoring activities, employees cannot expect
any personal privacy for Internet access. Suspected violations will be
investigated.
SAFEGUARDING INFORMATION: Information is one of the Company's most vital assets.
Each employee must make every effort to protect Manulife Financial's information
from unauthorized disclosure, loss or modification and should report any breach
of security to Information Security Office. The Internet is not a secure data
network and as such presents inherent security risks. Any information that is
generally not available to the public is confidential and must not be
transmitted on the Internet, except for legitimate business purposes and must be
encrypted prior to transmission over Internet.
USER AUTHENTICATION: Employees must adhere to all security requirements
concerning Internet access. For Internet access, individuals may have to
identify themselves and provide a password. Regardless of the circumstances,
passwords must not be shared or revealed to anyone else. To prevent any misuse,
individuals must choose passwords that are difficult to guess (for example, not
a dictionary word, not a personal detail, and not a reflection of work
activities, etc.).
CHAT ROOMS AND NEWSGROUPS: Manulife prohibits its employees from participating
in Internet chat rooms or newsgroups in discussions relating to the Company or
its securities. If an employee becomes aware of a rumour on a chat room,
newsgroup or any other source, that may have a significant effect on the price
of the Company's share price, they should notify Corporate Communications.(Refer
to Electronic Communications Disclosure Guideline).
SECURE GATEWAYS: Manulife has established Internet gateways (e.g. Manulife
InterConnect) to enable the Company to link with others in a secured manner. All
access to the Internet from company locations and/or devices must be routed
through these Internet gateways over approved services. For business
requirements that are not met by these gateways, approval will be required for
alternative connections. Only corporate standard applications and utilities
provided for Internet access must be used with these secured gateways.
REFERENCING THE COMPANY: Information referencing Manulife Financial directly or
indirectly must be approved by Corporate Communications. Current policy requires
that Corporate Communications, Divisional Marketing, and Legal review all
printed materials such as contracts, marketing and advertising materials
associated with the Company. This policy applies equally to information placed
on the Internet. Web pages developed for business use must be approved by
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Corporate Communications. As well, any reference to Manulife Financial, directly
or indirectly, must be approved by Corporate Communications.
DOWNLOADING: Software may be downloaded only for business purposes. Any software
downloading, acquisition and/or use must comply with Manulife Financial's
software licensing policy and should be assessed for business security risks.
All materials, including e-mails, received or downloaded from the Internet must
be scanned for viruses with the most current version of an approved anti-virus
program. While many "freeware" (no charge for use) and "shareware" (free
distribution, limited charge for use) software products may provide valuable
utilities and functions, providers of such products may not, themselves, have
the right to provide such license rights. Further software from unknown or
unfamiliar origins can potentially disrupt Manulife Financial's network and may
also carry hidden security risks.
RESPECTING INTELLECTUAL PROPERTY: License agreements for software and copyrights
of materials or documents obtained from the Internet must be honoured. Copyright
laws prohibit the copying of software and documents, which are owned by others.
These laws apply to all methods of copying including copy machines, disk/file
copies, and electronic transmission. Making copies of copyrighted software,
documents, art images or other digital forms over the Internet are examples of
copying material through electronic transmission. Without a license, agreement
or usage statement specifying otherwise, or without the explicit permission of
the owner, such copying is prohibited.
AVOIDING NETWORK DISRUPTIONS: Any activity that knowingly disrupts network
and/or computer services within Manulife Financial or across the Internet is
prohibited. Installation or the use of peer-to-peer software that enables file
sharing or distributed processing with a remote computer is prohibited.
Employees must also consider the impact on network performance before carrying
out certain activities. (e.g. when downloading large files during business
hours).
WHERE TO GO FOR HELP
The Information Security Office will keep employees aware of developments
affecting security and the appropriate use of the Internet, Please refer to the
Internet Use Policy - FAQ , a companion document to this policy, where you will
find answers to the most frequently asked questions.
C) CODE OF BUSINESS CONDUCT AND ETHICS
Topic: CODE OF BUSINESS CONDUCT AND ETHICS - WHY ETHICS MATTER - AN OVERVIEW
I-WHY ETHICS MATTER
At Manulife Financial we value our good name and strive to apply high standards
of integrity to everything we do.
WHY ETHICS MATTER TO YOU AND THE COMPANY
Operating in an ethical manner is essential to our success. Our customers,
investors and other stakeholders rely on us to be honest and fair. We must
behave ethically in the communities where we operate in order to maintain the
confidence of all of our stakeholders and ultimately to keep their business. It
is in our best interest to set high standards for ourselves at all times.
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THE PURPOSE OF THIS CODE
This Code provides standards for ethical behaviour when representing the Company
and when dealing with employees, field representatives, customers, investors,
external suppliers, government authorities and the public.
APPLICATION OF THE CODE
Manulife Financial's Code of Business Conduct applies to directors, officers,
employees, representatives, suppliers and other associates of Manulife Financial
Corporation, its subsidiaries and controlled affiliates. Given Manulife
Financial's commitment to corporate governance and public disclosure, this Code
is available on the Company's web site and is available in print upon request.
Any waiver of the Code will be granted only in very exceptional circumstances.
Any waiver for executive officers and directors will be granted only upon
approval by the Board of Directors or Board Committee and any waiver will be
disclosed promptly as required by law or stock exchange regulation. Any waiver
for officers, employees, representatives or other associates of Manulife
Financial will be granted only upon appropriate management or senior management
level approval.
The Code is organized into seven main sections:
- Living Manulife Financial's values
- Ethics in the workplace
- Ethics in your business relationships
- Conflicts of interest
- Handling information
- Ethics and the law
- Code of Business Conduct Acknowledgement and Conflict of Interest
Disclosure Form
At the end of each section is a list of related Company policies you should
refer to for more information. There is also a complete list of these policies
in section VIII of this Code, in addition to a copy of the Company's Code of
Business Conduct Acknowledgement and Conflict of Interest Disclosure statement
and guidelines for completing the form.
WHAT IF SOMEONE VIOLATES this Code?
All our activities must be able to withstand close scrutiny. To protect Manulife
Financial's good name, the Company may discipline and/or terminate its
relationship or affiliation with any director, officer, employee,
representative, associate or supplier who breaches this Code or related Company
policies. If violating the Code also violates the law, you will be subject to
prosecution.
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WHERE TO GO FOR HELP
It is critical that all of us who represent Manulife Financial, its subsidiaries
and controlled affiliates use good judgment and common sense. It is the best way
to ensure that our Company continues to meet high standards of business conduct.
Since we cannot anticipate every situation that will arise, it is important that
we have a way to approach questions and concerns. Always ask first, act later.
If you are unsure of what to do in any situation, seek guidance before you act.
If you have:
- Doubts about a particular situation;
- Questions or concerns about a business practice;
- Questions about potential conflicts of interest; or
- Concerns about potential or suspected illegal or unethical
behaviour.
As an officer, employee, representative or other associate of the Company, speak
to your manager, a member of the Human Resources or Law departments or the
Company's divisional Compliance officer. Concerns about potential or suspected
illegal or unethical behaviour should be referred to a member of the Human
Resources or Law Department.
As a member of the Company's Board of Directors, talk to the Company's General
Counsel. In addition, to maintain the independence of the Board of Directors,
the Board of Directors and its Committees may retain outside advisors as they
deem necessary. Individual directors may also retain outside advisors, at the
Company's expense, to provide advice on any matter before the Board or a Board
Committee with the prior approval of the Corporate Governance & Nominating
Committee.
You may report suspected or potential illegal or unethical behaviour without
fear of retaliation. The Company does not permit retaliation of any kind against
directors, officers, employees, representatives, suppliers or other associates
for good faith reports of illegal or unethical behaviour.
WHERE TO GO FOR HELP - REPORTING ACCOUNTING AND AUDITING COMPLAINTS/CONCERNS
Concerns Submitted By Directors, Officers, Employees, Representatives And Other
Associates:
Directors, officers, employees, representatives and other associates should
forward any accounting and auditing concerns to the Corporate Secretary in a
sealed envelope addressed to the Chair of the Audit Committee care of the
Corporate Secretary. These concerns may be forwarded on an anonymous basis. The
envelope should be marked "Confidential Internal Manulife Concern". The Manulife
internal mail system should be used for delivery to the Corporate Secretary to
ensure anonymity. The Corporate Secretary will then forward the sealed envelope
to the Audit Committee Chair.
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Complaints Submitted By The Public:
All complaints or submissions by the public regarding accounting, accounting
control and auditing matters should be sent to the Corporate Secretary. The
Corporate Secretary will then forward the complaint or submission to the Chair
of the Audit Committee.
QUICK ETHICS QUIZ
While a code of conduct can provide the general rules, it cannot cover every
situation. Ethics sometimes comes down to a personal decision. To help you make
the right choice, ask yourself the following questions:
- Is this legal? Is it fair?
- Would I want other people to know I did it?
- How would I feel if I read about it in the newspaper?
- How will I feel about myself if I do it?
- What would I tell my child or a close friend to do in a similar
situation?
Topic: CODE OF BUSINESS CONDUCT AND ETHICS - LIVING MANULIFE FINANCIAL'S VALUES
II - LIVING MANULIFE FINANCIAL'S VALUES
At Manulife Financial, our values guide everything we do, whether it's strategic
planning, day-to-day decision making or the way we treat customers and others
with a stake in the Company. These values are:
PROFESSIONALISM
We will be recognized as having the highest professional standards. Our
employees and representatives will possess superior knowledge and skills for the
benefit of our customers, investors and other stakeholders. Our professionalism
will show in every aspect of our business conduct, including behaviour,
language, appearance and attire.
REAL VALUE TO OUR CUSTOMERS
We are here to satisfy our customers. By providing the highest quality products,
services, advice and sustainable value, we will ensure our customers receive
excellent solutions to meet their individual needs.
INTEGRITY
All of our dealings are characterized by the highest levels of honesty and
fairness. We develop trust by maintaining the highest ethical practices.
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DEMONSTRATED FINANCIAL STRENGTH
Our customers, investors, and other stakeholders depend on us to be here in the
future to meet our financial promises. We earn this faith by maintaining
uncompromised claims paying ability, a healthy earnings stream, and superior
investment performance results, consistent with a prudent investment management
philosophy.
EMPLOYER OF CHOICE
Our employees will determine our future success. In order to attract and retain
the best and brightest employees, we will invest in the development of our human
resources and reward superior performance.
Topic: CODE OF BUSINESS CONDUCT AND ETHICS - ETHICS IN THE WORKPLACE
III - ETHICS IN THE WORKPLACE
We cannot have a positive and productive workplace unless we treat each other
with respect and trust. Each of us has to help create and maintain a healthy,
secure environment that values employee contributions and encourages learning.
REWARD PERFORMANCE AND ABILITY
At Manulife Financial, we value diversity and treat all individuals with
dignity. We hire and promote employees on the basis of ability and reward them
on the basis of performance. We respect individual rights to privacy and comply
with employment laws at all times.
TREAT OTHERS WITH RESPECT
We must give co-workers the same respect and service we give customers. When we
communicate with each other within the organization, we need to be open and
honest. It's one way to ensure quality in everything we do. Abusive, threatening
and violent behaviour are prohibited.
KEEP YOUR WORKPLACE SAFE
Manulife Financial must provide a safe and healthy work environment for all
employees. Protection of employees from injury or occupational illness is a
significant ongoing commitment on the part of the Company. This commitment to
health and safety involves co-operation and support of every manager and
employee of the Company. You have a responsibility to help ensure the Company is
complying with health, safety and environmental laws and regulations by
reporting accidents, potential hazards and other concerns immediately to your
manager or the facilities management in your area.
KEEP YOUR WORKPLACE SECURE
It is critical that we protect both individual and Company property and assets.
While Manulife Financial takes security measures, we must all be part of the
process. If you know of any
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situation or incident that could lead to the loss, misuse or theft of Company or
individual property, report it immediately to a manager or security personnel.
BEHAVE PROFESSIONALLY AT ALL TIMES
It is important to behave responsibly when representing Manulife Financial or
attending Company events. You must represent the Company in a positive manner
when dealing with clients and potential clients, and in all business activities.
It is expected that those, who choose to drink alcohol at Company or
employee-sponsored events will do so in moderation.
FOR MORE GUIDANCE
See the following related policies:
- Diversity and Harassment Policies
- Occupational Health and Safety Policy
- Alcohol Consumption Policy
Topic: CODE OF BUSINESS CONDUCT AND ETHICS - ETHICS IN YOUR BUSINESS
RELATIONSHIPS
IV - ETHICS IN YOUR BUSINESS RELATIONSHIPS
OUR BUSINESS DEPENDS ON SOUND RELATIONSHIPS WITH CUSTOMERS, THE COMMUNITY, OTHER
ORGANIZATIONS AND OUR STAKEHOLDERS. MAINTAINING THESE RELATIONSHIPS MEANS TAKING
EXTRA CARE WHEN GIVING OR RECEIVING GIFTS, WHEN PRODUCING MATERIALS FOR
CUSTOMERS AND OTHERS AND WHEN SHARING INFORMATION WITH OUTSIDE INDIVIDUALS AND
ORGANIZATIONS.
TREAT OTHERS HONESTLY AND FAIRLY
We are in business to satisfy customers. That means providing value, offering
quality products, services and advice and seeking customer feedback so we can
continually improve our products and services. We must determine the customer's
needs, make recommendations that best meet those needs and provide service and
support throughout the relationship.
We must treat customers with high standards of honesty, fairness and courtesy.
Customers must be able to voice their concerns easily and we must deal with
complaints and disputes fairly and quickly.
We seek to outperform our competitors fairly and honestly. We seek competitive
advantage through superior performance, never through unethical or illegal
business practices.
The materials we provide to customers, investors and other stakeholders must
meet high standards of professionalism. Advertising and sales materials must be
factual, easy to understand and based on the principles of fair dealing and good
faith. All promotional efforts, illustrations of products and marketing concepts
must be factual.
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All directors, officers, employees, representatives and other associates of the
Company must be careful not to mislead customers, investors or other
stakeholders about the financial status, products or services of the Company or
its competitors. We must never make promises the Company cannot keep. No
director, officer, employee, representative or other associate of the Company
should take unfair advantage of anyone, including customers, investors, other
stakeholders, suppliers or competitors. Taking unfair advantage includes
manipulation, concealment, abuse of privileged information, misrepresentation of
material facts, or any other unfair-dealing practice.
COMPLY WITH LOCAL LAWS
To be professional, we must follow our corporate standards of ethical business
conduct while appreciating the cultures and business customs of the countries
and comunities in which we operate. We must ensure compliance with applicable
laws and regulations in the jurisdictions where we do business.
TAKE CARE IN GOVERNMENT AND POLITICAL DEALINGS
In our dealings with government agencies and representatives, we must take
special care to use our corporate positions responsibly. This is especially true
in relation to the political process. It is important to take reasonable steps
to become familiar and comply with all laws and regulations that apply when
offering to provide entertainment, meals, gifts, gratuities and other items of
value to any employee or representative of federal, state, provincial and local
governments or when accepting such items of value from any employee or
representative of federal, state, provincial and local governments.
While the Company expresses views on local and national issues that affect its
operations, we cannot represent ourselves as Company spokespeople without proper
authorization.
The Company respects and supports the right to participate in the political
process. However, the Company will not reimburse any political contributions
that are made. Company time or property must not be used in campaigning for a
political party.
SHARE INFORMATION RESPONSIBLY WITH INDUSTRY GROUPS
Memberships in business organizations can increase the effectiveness of
individuals, the Company and our industry. The Company encourages membership in
such organizations, especially those that strive to improve the industry.
It is a normal part of these memberships to share information. However, we need
to ensure that we do not exchange information that could jeopardize the
Company's competitive position. We must also take care not to violate the
confidentiality that customers, investors, employees, representatives,
distributors, suppliers and others legitimately expect.
REFER MEDIA QUESTIONS TO COMMUNICATIONS DEPARTMENTS
The media play an important role in helping inform the public about Manulife
Financial, its products and services. Communications departments within each
division or geographic location are responsible for communicating official
Company positions to the media. You must direct all media inquiries to these
departments.
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CHOOSE SUPPLIERS THROUGH FAIR COMPETITION
Manulife Financial is committed to fair competition in all its dealings with
suppliers. It is important to communicate the Company's requirements clearly and
uniformly to all potential suppliers. Choose suppliers on the basis of merit,
competitiveness, price, reliability and reputation.
If a supplier asks you to endorse a product or service using the Company name or
your position as a Company representative, direct the request to the Executive
Vice President or Senior Vice President of your division or geographic location.
FOR MORE GUIDANCE
See the following sections in this Code:
- Conflicts of interest
- Handling information
- Ethics and the law
Topic: CODE OF BUSINESS CONDUCT AND ETHICS - CONFLICTS OF INTEREST
V - CONFLICTS OF INTEREST
A "conflict of interest" occurs when your private interest interferes in any
way, or even appears to interfere, with the interests of the Company. A conflict
situation can arise when you take actions or have interests that may make it
difficult to perform Company work objectively and effectively. It is also a
conflict if outside activities affect your judgment to act in the best interest
of customers, investors and other stakeholders.
Conflicts of interest damage the trust between you, the public and the Company.
To help prevent conflicts, you must complete a conflict of interest disclosure
statement. You are responsible for updating the statement as your circumstances
change.
If a potential conflict arises, report it immediately. If you need advice,
consult the procedures described in the section of this Code titled "Where to go
for help". The following are some of the most common areas of potential
conflict, but the most reliable guideline is your own common sense.
DEAL AT ARM'S LENGTH WITH SUPPLIERS
You must not be associated in any way with agreements between the Company and
suppliers or any organization in which you or a member of your immediate family
have an interest or which might result in you or your family member's personal
gain.
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BRIBERY AND KICKBACKS ARE PROHIBITED
Manulife Financial does not allow unfair business practices such as rebating,
bribery or kickbacks. These practices are against Company policy in all places
where we do business.
BE CAREFUL ABOUT GIFTS
Offers of gifts and entertainment are courtesies common among business partners.
However, offering or accepting gifts, entertainment or other benefits can be
mistaken for improper payments. For this reason, you must not give or accept
gifts, gratuities, favours or benefits if they are for more than a nominal value
or if they go beyond what could reasonably be considered ethical and accepted
business practices, or which may influence or appear to influence the
performance of your duties.
BE CAREFUL ABOUT PERSONAL BENEFITS
Conflicts of interest may arise if you, or a member of your family, receives a
personal benefit as a result of your position in the Company. All such personal
benefits, including loans and guarantees of obligations from the Company, must
be disclosed on the Company's Conflict of Interest Statement and approved by the
Company. Personal loans to executive officers are prohibited unless specifically
permitted by law.
FOLLOW COMPANY POLICY ABOUT HIRING FAMILY
In some situations, hiring or managing family members can lead to conflicts of
interest, unethical employment practices and the appearance of special
treatment. Family members must not be in positions that put them under or give
them the direct or indirect supervisory authority of another family member.
Family members include spouses (as defined for benefit purposes), children,
siblings and parents. This applies to all employment, including full-time and
part-time regular, contract and summer student hiring. All hiring within
Manulife should be conducted by Divisional Staffing areas.
INVEST IN AN ETHICAL MANNER
DIRECTORS, OFFICERS AND EMPLOYEES MUST STRICTLY FOLLOW ALL LAWS AND REGULATIONS
AFFECTING INVESTMENT IT IS UNETHICAL AND ILLEGAL FOR DIRECTORS, OFFICERS AND
EMPLOYEES TO BUY OR SELL MANULIFE FINANCIAL SECURITIES WITH THE BENEFIT OF
MATERIAL INFORMATION THAT HAS NOT BEEN PUBLICLY DISCLOSED ABOUT THE COMPANY OR
ITS AFFILIATES OR TO INFORM ANOTHER PERSON, OTHER THAN IN THE ORDINARY COURSE OF
BUSINESS, OF MATERIAL INFORMATION THAT HAS NOT BEEN PUBLICLY DISCLOSED. IN
ADDITION, IT IS UNETHICAL AND ILLEGAL TO BUY OR SELL SECURITIES OF OTHER
COMPANIES WITH THE BENEFIT OF YOUR KNOWLEDGE OF THE COMPANY'S INVESTMENT
INTENTIONS OR ANY INFORMATION THAT HAS NOT BEEN PUBLICLY DISCLOSED ABOUT SUCH
OTHER COMPANY AND THAT YOU OBTAINED IN THE COURSE OF YOUR EMPLOYMENT WITH
MANULIFE FINANCIAL.
Directors, officers and employees must also be cautious of potentially being in
a conflict of interest where they have made or wish to make an investment in a
business entity that transacts business with Manulife or in which Manulife has
made an investment.
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WORKING FOR COMPETITORS MAY JEOPARDIZE THE COMPANY
Unless a higher level senior executive has given prior written approval, no
Manulife Financial director, officer, or employee may work for any organization
that competes with the Company or that has a business relationship with the
Company. That includes serving as a director, officer, trustee, partner,
employee, consultant or agent.
USE CAUTION REGARDING OUTSIDE POSITIONS
Outside work or financial involvement in external organizations can lead to
conflicts of interest. Such involvement could interfere with your ability to
give objective, full-time attention to your work with Manulife Financial or
could damage the Company's image. You must not engage in any other employment or
take any civic, government or political position that would hamper your
performance or your judgment to act in the Company's best interest. You may sell
merchandise on Company property only with the authorization of your manager or a
Human Resources representative.
PROTECT CORPORATE OPPORTUNITIES
Directors, officers, employees, representatives and other associates are
prohibited from (a) benefitting from opportunities that are discovered through
the use of Company property, information or position; (b) using Company
property, information or position for personal gain; and (c) competing with the
Company. You owe a duty to the Company to advance its legitimate interests when
the opportunity to do so arises.
PROTECT THE COMPANY'S NAME AND ASSETS
The name Manulife Financial must be used only for authorized Company business
and never for personal activities. Do not identify yourself with the Company
while pursuing personal, political or not-for-profit activities, unless you
obtain the Company's authorization first.
Each director, officer, employee, representative or other associate entrusted
with access to or control over Company transactions and assets must ensure that
each use, acquisition or disposition of an asset by a person on behalf of the
Company is undertaken with the general or specific authorization of management
and is accurately and fairly recorded in reasonable detail in the Company's
books of account and record.
We all share a responsibility to protect Company assets Company time, property
and services, including assets such as stationery, computers and mail services,
may not be used for personal activities, unless you have your manager's specific
approval. Personal activities include political and charitable causes. You may
not remove or borrow Company property without permission. Report any misuse of
Company assets to your manager or the Audit Services Department.
FOR MORE GUIDANCE
See the following related policies:
- Code of Business Conduct Acknowledgement and Conflict of Interest
Disclosure Statement
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- Real Estate Division Code of Conduct and Compliance
- Code of Ethics for Personal Investing
- Staffing Policy
Topic: CODE OF BUSINESS CONDUCT AND ETHICS - HANDLING OF INFORMATION
VI - HANDLING INFORMATION
Information is one of the Company's most vital assets. Confidential information
includes all non-public information that might be of use to competitors or
harmful to the Company or our customers and other stakeholders if disclosed. It
is important that you understand how sensitive this information is, and how
significant it is for competitiveness and individual privacy.
PROTECT CONFIDENTIAL INFORMATION
In the course of regular business, we collect a substantial amount of
information about our applicants, policyholders, claimants, borrowers,
employees, representatives and investors. We must handle this information with
the greatest care to merit their confidence.
Personal information must be kept secure, in confidence and used only for the
purposes for which it was collected. It may be disclosed only to those who have
a right to the information or when the law requires disclosure.
Confidential information about the Company itself must be protected. Information
about the Company is confidential if it is not generally available to the
public. Examples are financial results before they are announced, business
plans, business forecasts, strategic initiatives, proposed acquisitions or
divestitures, and current or proposed products. If you have access to
confidential information as a result of your job, you must use every precaution
to keep it confidential. It is important to use discretion when discussing
Company business in public places such as restaurants and airplanes, or when
using public or cellular phones, the Internet and fax machines. If you are
required for legitimate business purposes to disclose confidential information
to any person outside the Company, authorization should be obtained from your
manager.
You have a duty to protect confidential information even after you leave your
employment with the Company.
FOLLOW DISCLOSURE REQUIREMENTS
Manulife is required to make continuous disclosures on a timely and broadly
disseminated basis and without being unduly optimistic on prospects for future
company performance. The key principles of continuous disclosure are:
- All materials must be broadly disseminated in a timely manner
- Disclosure must be full, fair, understandable and accurate and avoid
any misrepresentation of the Company and its finances
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- Disclosure must be accomplished consistently during both good times
and bad
- All legitimate requests for information should be treated equally
Employees must refer all inquiries from the financial community, shareholders
and media to an authorized spokesperson.
RESPECT COPYRIGHTED MATERIALS
Many materials you use in the course of your work as an employee or
representative of Manulife Financial are protected by copyright laws. A few
examples are computer software, books, audio and videotapes, trade journals and
magazines. There may also be a copyright on presentation slides, training
materials, management models and problem-solving frameworks produced by outside
consultants. It is illegal to reproduce, distribute, or alter copyrighted
material without the permission of the copyright owner or authorized agent.
You must also comply with the copyrights on software installed on your office
computer and on network computer storage areas you control. You may not copy,
install or otherwise use software in a manner that violates the license
agreement for that software.
KEEP FULL AND ACCURATE RECORDS
The Company needs full and accurate records to meet its legal and financial
obligations and to manage its business properly. All Company books, financial
reports, expense accounts, time sheets, administrative records and other similar
documents must be completed accurately, honestly and in accordance with Company
procedures. Making false, fictitious or inappropriate entries with respect to
any transaction of the Company or the disposition of any of the Company's assets
is prohibited, and no director, officer, employee, representative or other
associate may engage in any transaction that requires or contemplates the making
of false, fictitious or inappropriate entries. You are responsible for the
accuracy and completeness of any reports or records you create or maintain.
Unrecorded or "off the books" funds or assets should not be maintained unless
permitted by applicable law or regulation.
Furthermore, all directors, officers, employees, representatives and other
associates must comply with the Company's records retention policies. These
policies describe how long documents and records (whether in printed or
electronic form) must be maintained in order to facilitate the Company's ongoing
operations and to satisfy financial, legal and regulatory retention
requirements. These policies also provide directions for the proper disposal of
records that have been kept for the required periods. In accordance with these
policies, in the event of litigation or governmental investigation, please
consult the Company's divisional Law Department.
USE COMMUNICATIONS SYSTEMS ONLY FOR BUSINESS
Company communications systems are only for Company business. This includes all
computer telecommunications and word processing equipment the Company owns or
leases as well as all remote computing services used by the Company, including
the Internet.
All Manulife Financial electronic mail and voice mail systems (including data on
these systems), Internet access and computers are the Company's property.
Authorized employees may periodically check on these systems to correct network
problems and to ensure they are properly
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used and secure. You cannot expect any personal privacy for communications that
you send, receive or store on these systems.
FOR MORE GUIDANCE
See the following sections in this Code:
- Ethics in your business relationships
- Conflicts of interest
- Ethics and the law
See the following related policies:
- Disclosure Policy
- the INFORMATION SECURITY MANAGEMENT PROGRAM DATABASE FOR:
- Information Security Program
- Internet Use Policy & the Internet Use Policy FAQ &
- the Information Classification & Handling Standards
- Privacy Code
- Records Retention Schedule Authorization
Topic: CODE OF BUSINESS CONDUCT AND ETHICS - ETHICS & THE LAW
VII - ETHICS AND THE LAW
Manulife Financial is committed to operating within the laws and regulations of
every jurisdiction in which it operates.
KNOW AND COMPLY WITH THE LAW
You should obtain an understanding of the laws that affect your work. Make sure
your business conduct complies with those laws. Report violations quickly and
manage them properly if they occur in an area you manage.
A formal compliance management program is in place at Manulife Financial. It is
designed to promote consistent management and monitoring of compliance with laws
and regulations in all Company operations. If you have a concern relating to
compliance, consult the procedures described in the section of this Code titled
"Where to go for help".
If you belong to a professional association, you are also expected to abide by
that association's governing rules of professional responsibility and conduct.
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MANAGE ASSETS PROPERLY
Customers expect that the money they entrust to the Company will be handled
responsibly. If you have access to customer funds, you must make sure customer
funds are handled in a trustworthy manner. Every division has procedures and
standards to help protect and account for all funds under management and to
prevent carelessness, fraud or dishonesty.
IDENTIFY AND REPORT FRAUD AND THEFT
As a provider of financial services, Manulife Financial is vulnerable to loss
from dishonesty and fraud. Fraud can take many forms, such as mishandling of
money, theft of cash or property, money laundering, terrorist financing,
misrepresentation and falsification or forgery of documents.
Dishonesty, combining personal and business funds, and fraud are all illegal. It
is management's responsibility to ensure there are proper internal controls to
deter and detect fraud and other dishonest activities, but everyone in the
Company must help. If you are aware of any suspicious activity, you have a duty
to report it immediately to your manager and the Audit Services Department or
divisional Special Investigation Unit, where applicable.
REPORTING ANY ILLEGAL OR UNETHICAL BEHAVIOUR
You are encouraged to talk to appropriate personnel about suspected or potential
illegal or unethical behaviour or when you are in doubt about the best course of
action in a particular situation. Consult the procedures described in the
section of this Code titled "Where to go for help" on reporting any suspected or
potential illegal or unethical behaviour. It is the policy of the Company not to
allow retaliation for reports of misconduct by others made in good faith.
Directors, officers, employees, representatives and other associates are
expected to cooperate in internal investigations of misconduct.
FOR MORE GUIDANCE
See the following sections in this Code:
- Ethics in your business relationships
- Conflicts of interest
- Handling information
See the following related policies:
- Anti-Fraud Policy
- Regulatory Compliance Management Policy
- Anti-Money Laundering Policy
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Topic: CODE OF BUSINESS CONDUCT AND ETHICS - OTHER RELATED POLICY DOCUMENTS
VIII-A FINAL WORD
Manulife Financial's reputation is the result of more than 100 years of
dedication, quality service and ethical dealings. Keeping our good reputation
depends directly on the decisions you make every day.
This Code of Business Conduct provides standards and sets high expectations for
directors, officers, employees, representatives, suppliers and other associates.
However, as emphasized in the Code, your own good judgment is most important in
ensuring that Manulife Financial remains an ethical company.
OTHER POLICY DOCUMENTS
The Company has related policies to help you deal with ethical issues. The
following policies are corporate in nature and apply worldwide:
- Anti-Fraud Policy
- Anti-Money Laundering Policy
- Regulatory Compliance Management Policy
- Disclosure Policy
- Diversity and Harassment Policies
- the Information Security Management Program Database including:
(i) Internet Use Policy & the Internet Use Policy FAQ
(ii) Information Classification & Handling Standards
- Xxxxxxx Xxxxxxx and Reporting Policy
- Privacy Code
- Protocol for Receipt and Treatment of Complaints Regarding
Accounting or Auditing Matters
- Records Retention Schedule
- Staffing Policy
ALSO, PLEASE REFER TO YOUR DIVISION FOR DIVISIONAL POLICIES SUCH AS:
- Agent Code of Conduct
- Alcohol Consumption Policy
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- Code of Ethics for Personal Investing
- Occupational Health and Safety Policy
- Real Estate Division Code of Conduct and Compliance
- Travel and Entertainment Policy
In North America, you can access these policies @mfc. Elsewhere, contact your
Human Resources Department.
Topic: CODE OF BUSINESS CONDUCT AND ETHICS - FORM GUIDELINES
(ACKNOWLEDGEMENT & CONFLICT OF INTEREST DISCLOSURE)
IX - Guidelines for completing the Code of Business Conduct Acknowledgement and
Conflict of Interest Disclosure Statement
WHAT IS A CONFLICT OF INTEREST? A "conflict of interest" occurs when your
private interest interferes in any way, or even appears to interfere, with the
interests of the Company as a whole. A conflict situation may arise when you
take actions or have interests that may make it difficult to perform Company
work objectively and effectively. It is also a conflict if outside activities
affect your judgment to act in the best interest of customers or other
stakeholders.
Please remember that:
- you must conduct your outside activities or interests on your own
time, not during your hours of employment with Manulife Financial
- Manulife Financial resources, such as employees, equipment and
supplies, may not be used for personal purposes
- outside activities and family or personal relationships must not
interfere with your ability to exercise good judgment or perform
your duties in a satisfactory way.
WHAT ACTIVITIES OR CIRCUMSTANCES SHOULD I REPORT?
Circumstances that you should report as a potential conflict of interest.
The types of activities you should report include:
- you or a family member receiving a personal benefit, including a
loan or guarantee of obligation from the Company, as a result of
your position in the Company
- having a job, trade or business outside Manulife Financial which
could put you in direct or indirect competition with Manulife
Financial, its suppliers, or others who have a contract with
Manulife Financial
- becoming an officer, agent or director of a for-profit company
- reporting to or supervising a spouse, child, sibling, or parent,
either directly or indirectly, at Manulife Financial or a subsidiary
company
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- having any family or other personal relationship with a Manulife
Financial employee or service provider which could create the
perception of a conflict of interest
- any other situation that could reasonably appear to create a
potential conflict of interest.
HOW SHOULD I REPORT A POTENTIAL CONFLICT OF INTEREST?
For officers, employees, representatives and other associates, where
appropriate, you should also tell your manager about any real or possible
conflicts of interest so that together you can address the issues involved. If
you have discussed your situation with your manager, please indicate this on the
disclosure form (see below) and include details.
WHAT DOES THE COMPANY DO WITH THESE FORMS?
If you report a potential conflict, the Human Resources Department and/or Law
Department will review your disclosure statement on a confidential basis. The
process varies, depending upon the type of activity or relationship you report.
The objectives of the review are to:
- assess whether you have any real or perceived conflict of interest,
and
- take appropriate measures to address any conflict.
The Human Resources Department and/or Law Department may contact you for more
details. You may also be asked to respond to any concerns raised by the review.
Your manager may also take part in these discussions with you. Any
understandings or agreements reached as a result of these discussions will be
put in writing in an acknowledgement letter to you, together with a copy of your
disclosure form, and filed with the Human Resources Department.
WHAT SHOULD I DO IF MY SITUATION CHANGES?
It is your responsibility to keep the information you report up-to-date by
filing a new disclosure form. You can obtain the form from your divisional Human
Resources Department or at @mfc in North America.
WHO SHOULD I CONTACT IF I HAVE QUESTIONS OR CONCERNS?
You may contact either Human Resources or the Law Department on a confidential
basis if you have any questions or concerns about these guidelines or filing
your report.
MEMBERS OF THE BOARD OF DIRECTORS
Members of the Board of Directors should address any real or possible conflicts
of interest with the Company's General Counsel. Individual directors may also
retain outside advisors, at the Company's expense, to provide advice on any
matter before the Board or a Board Committee with the prior approval of the
Corporate Governance & Nominating Committee.
It is the responsibility of every member of the Board of Directors to keep
relevant information up to date by filing a new disclosure form. The form should
be filed with the Corporate Secretary. A member of the Board of Directors may
contact the Corporate Secretary on a confidential basis regarding questions or
concerns about these guidelines or filing a disclosure form.
SEE CODE OF BUSINESS CONDUCT ACKNOWLEDGEMENT AND CONFLICT OF INTEREST DISCLOSURE
FORM HR2200EN
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(ACKNOWLEDGEMENT & CONFLICT OF INTEREST DISCLOSURE)
X - Code of Business Conduct Acknowledgement and Conflict of Interest Disclosure
Statement
COMPANY POLICIES AND GUIDELINES
I acknowledge that throughout the course of my employment/relationship with the
Company, I agree to adhere/have and will continue to adhere to the Code of
Business Conduct and related corporate policies and guidelines of Manulife
Financial Corporation and its related companies. ("Manulife Financial").
CONFLICT OF INTEREST
I have read and agree to follow the requirements for reporting potential
conflicts of interest described on the other side of this form and in Manulife
Financial's Code of Business Conduct. I also agree to update the information I
report on a continuous basis.
PLEASE CHECK ONE OF THE BOXES:
I have no potential conflict of interest.
I have a potential conflict of interest as described below. (Provide details,
including the name of any outside employer, organization or business, the
position you hold, a description of the family or personal relationship
involved, etc.)
I HAVE DISCUSSED THIS POTENTIAL CONFLICT WITH MY MANAGER OR OTHER APPROPRIATE
PERSONNEL.
[ ] No
[ ] Yes (please provide date and a brief description)
Date(d/m/y) Description
PERSONAL DETAILS AND SIGNATURE
----------------------------------------
Name (first, middle initial, last)
---------------------------------------- ---------------------------------
Title Business Unit or Branch
----------------------------------------
Manager's Name
---------------------------------------- ---------------------------------
Date Signed (d/m/y) Signature
SEND COMPLETED DISCLOSURE FORM TO YOUR DIVISIONAL HUMAN RESOURCES DEPARTMENT OR
CLICK TO SUBMIT.
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SCHEDULE C - SERVICE LOCATIONS
CSC Data Center
0000 Xxxxxxxxx Xxx
Xxx Xxxxx, XX
XXX
00000
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SCHEDULE D - INCIDENT MANAGEMENT PROCEDURES
To be mutually agreed upon by CSC and Customer on a case by case basis in each
Exhibit and Work Assignment to the Agreement
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SCHEDULE E - PROBLEM MANAGEMENT PROCEDURES
To be mutually agreed upon by CSC and Customer on a case by case basis in each
Exhibit and Work Assignment to the Agreement
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SCHEDULE F - CHANGE MANAGEMENT PROCEDURES
To be mutually agreed upon by CSC and Customer on a case by case basis in each
Exhibit and Work Assignment to the Agreement
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SCHEDULE G - DISPUTE RESOLUTION PROCEDURES
1. DISPUTES - INITIAL REFERRAL TO MANAGEMENT
The Parties shall first attempt to resolve all Disputes by submitting such
Disputes, for review, consideration, discussion and resolution by, to the Joint
Management Committee. If the Joint Management Committee does not reach
resolution of such Dispute within five (5) business days of the referral, then
the Parties shall proceed in accordance with Section 2 of this Schedule.
2. SENIOR EXECUTIVES
In the event that a Dispute cannot be resolved pursuant to section 1 above, the
Dispute shall be referred to, in the case of Customer, Xxxx X. Xxxxxx, Senior
Executive Vice President and Chief Administration Officer and in the case of
CSC, to Xxx Xxxxx, Customer Executive, or any other individual holding the same
or similar title, for review, consideration, discussion and resolution. If such
individuals, or their designated representatives are unable to resolve the
Dispute within five (5) business days after the referral of the matter to them,
the Parties shall submit the Dispute for resolution pursuant to Section 3 of
this Schedule.
3. RESOLUTION OF UNRESOLVED DISPUTES
(i) Except with respect to Disputes concerning:
i. The right of either Party to apply to a court of competent
jurisdiction for an interim or interlocutory injunction or
other provisional remedy to preserve the status quo or prevent
irreparable harm; or
ii. Any Disputes that may arise in connection with the ownership
of any Intellectual Property right(s) or in respect of any
claim for contribution or indemnity for any third party
infringement or any claim involving third parties; or
iii. Any Disputes that may arise in connection with a breach
of a Party's obligations of confidentiality hereunder,
If any Dispute is not resolved pursuant to Section 2 above, either Party may
within fifteen (15) calendar days after the completion of the procedures set
forth in Section 2, refer such Dispute to mediation by serving written notice of
its intention to mediate the Dispute to the other Party in accordance with
Section 4 below.
4. MEDIATION
(a) In the event that any Dispute arises between the Parties in relation
to this Agreement, or out of this Agreement, and the Dispute is not
resolved in accordance with the procedures contemplated above, the
Parties agree to submit the Dispute to mediation. The Parties
further agree that their participation in mediation is a condition
precedent to any Party pursuing any other available remedy in
relation to the Dispute.
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(b) Any Party to the Dispute may give written notice to the other Party
of its desire to commence mediation, and a mediation session must
take place within fifteen (15) days after the date that such notice
is given. The Parties must jointly appoint a mutually acceptable
mediator within five (5) days after a Party has given notice of its
desire to mediate a Dispute failing which, the Parties may agree to
have one appointed by the American Arbitration Association or such
other organization or person agreed to by the Parties.
(c) The Parties agree that the mediation will be conducted in accordance
with the Commercial Mediation Procedures of the American Arbitration
Association ("AAA") or such other rules as are recommended by the
mediator and the Parties shall share the cost of mediation equally.
Any settlement reached by mediation shall be resolved in writing,
shall be signed by the Parties and shall be binding on them.
(d) If the Parties fail to resolve the Dispute to their mutual
satisfaction within fifteen (15) days following the date the Parties
agree that mediation should be tried, either Party may by notice to
the other require the Dispute to be resolved by binding arbitration
as set out in Section 5 below.
5. Arbitration
(a) Except for the right of either Party to apply to a court of
competent jurisdiction for a temporary restraining order,
preliminary injunction or other equitable relief to preserve the
status quo, or Disputes relating to breach of the confidentiality,
non-disclosure or intellectual property provisions of this
Agreement, all Disputes and other matters relating to breach of this
Agreement or an Exhibit or Work Assignment, and which cannot be
resolved by the Parties in accordance with the provisions set out
above, shall be settled by arbitration in accordance with this
Agreement.
(b) Notice requesting arbitration, or any other notice made in
connection therewith, shall be made in writing by one Party and sent
by certified mail, return receipt requested, to the other Party. The
notice requesting arbitration shall state in particular all issues
to be resolved in the view of the complaining Party, shall appoint
the arbitrator selected by the complaining Party and shall set a
tentative date for the hearing, which date shall be no sooner than
forty-five (45) days and no later than ninety (90) days from the
date that the notice requesting arbitration is mailed. Within twenty
(20) days of receipt of the complaining Party's notice, the
respondent shall notify the complaining Party of the location for
conducting arbitration and the name of its appointed arbitrator.
When the two arbitrators have been appointed, they shall agree on a
third independent arbitrator and shall appoint such person by
written notice to the Parties signed by both arbitrators within
thirty (30) days from the date of the appointment of the second
arbitrator. The three (3) arbitrators shall constitute the
Arbitration Board ("Board"),
(c) All arbitrations shall take place in the State of Delaware. All
arbitration shall be conducted in the English language.
(d) The members of the Board shall be impartial and disinterested and
unless otherwise mutually agreed shall be professionals familiar
with insurance and the information
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technology industries, or (ii) active or former officers of
management employees of insurance and information technology
companies. The person selected by the two respective arbitrators
appointed by the Parties shall be the umpire or chief arbitrator.
(e) Arbitration shall be conducted in accordance with the Commercial
Rules of the AAA then in effect except as modified herein.
(f) The Parties agree that all then current employees or subcontractor
of each with material relevant information will be voluntarily
produced, at the employer's expense for all proper discovery and
arbitration hearings.
(g) The cost of the arbitration relative to the arbitrators and the AAA
("Costs") shall be borne equally pending the arbitrators' award.
Each Party shall bear its own expenses for legal fees. The
prevailing party in any arbitration proceeding hereunder shall be
entitled, in addition to such other relief as may be granted, to
recover the portion of the Costs incurred by that party in
connection with arbitration under this Agreement prior to the award.
(h) The Parties agree that the arbitrators shall be required to render
their decision in writing within thirty (30) days of the conclusion
of the proceedings, unless such time shall be extended by mutual
agreement of the Parties. With respect to any matter brought before
the Board, the Board shall make a decision having regard to the
intentions of the Parties, the terms of this Agreement, and custom
and usage of the insurance and information technology industry. Such
decisions shall be in writing and be binding on the Parties in
respect of all matters relating to the arbitration and shall state
the findings of fact and conclusions of law upon which the decision
is based, provided that such decision may not (i) award
consequential, punitive, special, incidental or exemplary damages,
(ii) include a suspension of this Agreement or any provisions
hereof, or (iii) render a decision which, if reached by a trial
court, would be vacated, modified or corrected in whole or in part
under the standard of review used by appellate courts reviewing a
trial court decision. The decision shall be based exclusively upon
the evidence presented by the Parties at a hearing in which evidence
shall be allowed. There shall be no appeal from the determination of
the arbitrator to any court. The decision may be entered by either
Party in any court having jurisdiction.
(i) Each of the Parties agrees to co-operate promptly and fully with the
other Party with respect to all aspects of arbitration, including
the appointment of the arbitrator and compliance with any requests
or orders of the arbitrator.
6. DISPUTES EXCLUDED FROM ARBITRATION
The following types of Disputes, unless otherwise agreed in writing by the
Parties are excluded from arbitration:
(a) intellectual property and intellectual property rights;
(b) Confidential Information, (except for disputes related to Customer
Information, including privacy of Customer Information which at the
sole discretion of Customer may be an excluded Dispute);
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(c) third party claims;
(d) appropriate Fees to be charged for Change orders or other changes to
the Fees, other than Benchmarking disputes which shall be submitted
to arbitration or disputes as to whether a particular service is
in-scope and should be included in the Services;
(e) Amending or re-setting previously mutually agreed to Service Levels;
and
(f) Customer's termination of this Agreement or any Exhibit or Work
Assignment.
7. CONFIDENTIALITY OF DISPUTES
The Parties agree that the existence of any Dispute being resolved under this
Agreement and any steps or proceedings taken by the Parties in connection
therewith shall be deemed to be Confidential Information of the Parties.
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