[****] REPRESENTS MATERIAL WHICH HAS BEEN REDACTED AND SEPARATELY FILED
WITH THE COMMISSION, PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT
PURSUANT TO RULE 406 UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
Global Purchase Agreement
Provision of CallCentre CTI Technology
To HSBC by
SoftGen International
October 1999
V6.3
Table of Contents
Agreement Revision Date
Agreement between HSBC Holdings plc Oct 99
acting for and on behalf of the HSBC Group
and SoftGen International
Schedules
1 The Operating Programs and Customised Software Developments
2 SOFTGEN CIMphonyTM Pricing (HSBC Group)
3 SOFTGEN CIMphonyTM SOFTWARE MAINTENANCE SERVICES
SOFTGEN CIMphonyTM PROJECT MANAGEMENT SERVICES
4 SOFTGEN TECHNICAL ASSISTANCE
5 EXTERNAL DESIGN SYSTEM SPECIFICATIONS (Not attached)
THIS AGREEMENT is made on the 26th of October 1999 between HSBC Holdings
plc whose address is 00 Xxxxx Xxxxxx Xxxxxx, Xxxxxx XX0X 0XX acting for
and on behalf of all subsidiaries, associated and managed companies of
HSBC Holdings plc (hereinafter "HSBC") and SoftGen International whose
address is 0000 Xxxxx Xxxxxxx Xxxxxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx,
00000, XXX (hereinafter "SoftGen"),
WHEREAS it is AGREED that SoftGen will supply CIMphonyTM Computer
Telephony Integration systems software, grant software licenses and
supply software development, consulting and technical assistance services
to HSBC either directly, or by prior agreement with HSBC via agency,
ACCORDING TO the terms and conditions set out below and in the attached
Schedules 1-5.
Signed for HSBC Holdings plc In the presence of
On behalf of HSBC
Signature Signature
/s/ Xxxx Xxxxxx /s/ Xxx Xxxxxxx
Name Name
Xxxx Xxxxxx Xxx Xxxxxxx
Title Title
General Manager IT Group Head of Telecoms
Signed for SoftGen In the presence of
International Inc.
Signature Signature
/s/ Xxxxxx Xxxxxx /s/ Xxxxx XX Xxxxxxx
Name Name
Xxxxxx Xxxxxx Xxxxx XX Xxxxxxx
Title Title
President Senior Executive Securities &
Markets IT
1.0 The Operating Programs
1.1
SoftGen agrees to sell to HSBC and HSBC agrees to buy from SoftGen
the CIMphonyTM standard server software given in Schedule 1
(herinafter the "Operating Programs") at the locations and prices
shown and agreed with HSBC.
2.0 Customised Software Developments
2.1
SoftGen agrees to develop and supply to HSBC customised software
developments and any changes and additions which may be necessary to
the Operating Programs according to the HSBC specifications given in
Schedule 5 (herinafter the "Customised Software Developments") at
the prices agreed with HSBC given in Schedule 1.
3.0 Further Operating Programs, Further Customised Software
Developments, Technical Assistance & Consultancy, Project Management
3.1
HSBC may request further supply of additional Operating Programs
(hereinafter "Further Operating Programs") or Further Customised Software
Developments or on-site Technical Assistance and Consultancy Services by
formal request for quotation to SoftGen in writing via a designated
Information Technology division (IT) representative of HSBC.
3.2
SoftGen agrees to supply to HSBC any Further Operating Programs as
listed at the prices given in Schedule 2 or Further Customised
Software Developments by particular quotation or to supply Technical
Assistance and Software Maintenance and Project Management as listed
at the prices given in Schedules 3 and 4 for which HSBC may raise
orders from time to time.
3.3
HSBC may use within any subsidiary, associated and/or managed
company of HSBC Holdings plc. any Operating Programs, Further
Operating Programs, Customized Software Developments or Further
Customised Software Developments provided within the terms of this
Agreement.
3.4
HSBC will specify in writing to SoftGen at time of request for all
orders of Further Operating Programs or Further Customised Software
Developments the following information which shall only thereafter
be considered a properly constituted order:
(a) whether SoftGen installation and implementation services are
required ("SG Installed") or
(b) whether HSBC will provide from its own resources locally all
installation and implementation resources ("HSBC Installed") and
(c) the quantities of Further Operating Programs or Further Customised
Software Developments required, and
(d) the locations where and HSBC IT staff to whom these are to be
delivered, and
(e) the locations where these are to be installed if different, and
(f) the dates required for the delivery and
(g) any particular functionality, software maintenance, method or
performance of operation required or not required.
3.5
For orders of Further Operating Programs or Further Customized
Software Developments which are designated "SG Installed" as above,
HSBC shall provide a date by which demonstration of working order
and the latest date by which Software Acceptance is to be achieved.
For orders of Further Operating Programs or Further Customised
Software Developments which are designated "HSBC Installed" as
above, demonstration of working order and Software Acceptance shall
not apply and HSBC shall submit payment to SoftGen 30 days after
receipt of invoices by HSBC.
3.6
The terms of this Agreement will be extended to HSBC by SoftGen only
for those Operating Programs, Further Operating Programs, Customised
Software Developments or Further Customised Software Developments
which are contained within orders placed under the terms of this
Agreement. Should a corporate entity of HSBC be offered by SoftGen
directly or indirectly terms for supply, software maintenance and or
technical assistance or development consulting Operating Programs,
Further Operating Programs, Customised Software Developments for
Further Customised Software Developments either qualitatively or
quantitatively more advantageous than those contained herein, then
at HSBC's request and without contest those terms will be included
within this Agreement.
3.7
SoftGen will verify that the Further Operating Programs requested
are appropriate for the purpose for which HSBC intend. SoftGen will
advise HSBC of any hardware configuration or other associated
software requirements necessary to the operation of the Further
Operating Programs ordered.
3.8
SoftGen will within 14 days acknowledge receipt of the request and
respond in writing with SoftGen's ability to fulfill the request or
not ("Acknowledgment"), together if applicable with a quotation of a
fixed onetime cost for Further Customised Software Developments and
the estimated time to complete the task or a date by which this
information will be supplied to HSBC.
3.9
The Acknowledgement will confirm all costs to be borne by HSBC in
respect of the order including the onetime and recurrent costs for
the Further Operating Programs or Further Customised Software
Developments, any travel and subsistence required, Technical
Assistance or Consultancy fees, Project Management and all other
charges onetime and recurrent according to the prices given in
Schedules 2, 3 and 4. SoftGen will include as option within each
quotation to HSBC for Further Software Development one calendar week
of SoftGen Technical Assistance and one airfare in the event that on-
site technical assistance is required.
3.10
The Acknowledgment will confirm SoftGen understanding of the
arrangements for Software Maintenance support in respect of the
order placed together with location of delivery of software for
Software Acceptance. In absence of other written instruction
delivery will be made to the HSBC origination of the request and
Software Maintenance will be provided for an initial 12 month
period.
3.11
HSBC will confirm its understanding and acceptance to SoftGen in
writing ("Order") accompanied by an order number reference, HSBC
billing address and indication of any particular terms under which
this Order is placed.
3.12
SoftGen will supply to HSBC any Further Operating Programs or
Further Customised Software Developments and any revisions or
amendments as may be ordered by HSBC from time to time on a suitable
electronic medium.
3.13
SoftGen will supply to HSBC the most current version of the
Operating Programs or Further Operating Programs at the revision
level which SoftGen would supply to new customers procuring those
Operating Programs or Further Operating Programs within the product
minor release range. Any upgrades to hardware necessitated by such
new versions of Operating Programs or Further Operating Programs
will be at HSBC cost.
3.14
SoftGen will supply to HSBC all minor enhancements to the Operating
Programs or Further Operating Programs installed. From time to time
SoftGen will significantly enhance its range of Operating Programs
or Further Operating Programs which enhancement shall constitute a
Major Release Product. HSBC may purchase such a Major Release
Product at the pricing for that product which SoftGen shall offer to
HSBC at that time.
3.15
SoftGen reserves its right to withdraw technical support or Software
Maintenance or Technical Assistance of any Operating Program or
Further Operating Programs purchased by HSBC should the version in
use by HSBC not be maintained by HSBC within three minor release
levels of any Further Operating Program currently supplied by
SoftGen to new customers or if the release level of the Further
Operating Program in use is older than two years from the currently
supplied major release version.
4.0 SoftGen Software Licenses
4.1
SoftGen agrees to grant to HSBC a perpetual, paid-up, non-exclusive,
non-transferable license to use the Operating Programs, Further
Operating Programs, Customised Software Developments and Further
Customised Software Developments listed in Schedules 1 and 2 as may
be amended from time to time provided that the appropriate software
license payments, software development charges and/or Software
Maintenance payments as listed in Schedules 1 to 4 have been paid
previously by HSBC to SoftGen.
4.2
SoftGen will invoice HSBC for all copies of the Operating Programs,
Further Operating Programs, Customised Software Developments and
Further Customised Software Developments used on HSBC premises
according to the pricing of Schedule 2.
4.3
HSBC may not without the prior approval in writing of SoftGen make
unlicensed copies of and or utilize copies of the Operating
Programs, Further Operating Programs, Customised Software
Developments and Further Customised Software Developments. For each
such copy HSBC will pay to SoftGen the license fee given in Schedule
2.
4.4
HSBC agrees that all copies of Operating Programs, Further Operating
Programs, Customised Software Developments and Further Customised
Software Developments used on HSBC premises will be authorized by
and formally licensed from SoftGen according to the terms and
conditions as listed in Schedules 1, 2, 3 and 4 as applicable.
4.5
The perpetual, paid-up, non-exclusive, non-transferable licenses
granted by SoftGen to HSBC entitles HSBC to use the Operating
Programs, Further Operating Programs, Customised Software
Developments and Further Customised Software Developments as given
in Schedules 1 and 2 in any country where the HSBC Group operates.
These licenses may be transferred within HSBC with prior formal
notice to and agreement by SoftGen.
4.6
Such perpetual, paid-up, non-exclusive, non-transferable licenses
shall not include licenses for any Third Party Software incorporated
within the Operating Programs, Further Operating Programs,
Customized Software Developments and Further Customised Software
Developments or any other licenses used in conjunction with the
Further Operating Programs and or Further Customised Software
Developments which are subject to mutual agreement between SoftGen,
HSBC, and Third Party licensor(s).
5.0 CIMphonyTM Specification/System Performance
5.1
SoftGen warrant that the Operating Programs and Further Operating
Programs will operate to SoftGen's published specifications and
where the operation is not described in their published
specifications that the Operating Programs and Further Operating
Programs will operate in a manner that HSBC might reasonably expect.
Otherwise SoftGen will make any rectifications to the Operating
Programs and Further Operating Programs without delay and free of
extra charge to HSBC for the rectification work to ensure such
normal or expected operation during the period before User
Acceptance. Any upgrades to HSBC hardware or software not supplied
by SoftGen necessitated by such rectification will be performed by
HSBC.
5.2
SoftGen warrants that the Customised Software Developments and
Further Customised Software Developments will operate to the written
specifications provided by HSBC at time of order and where the
operation is not so described that the Customised Software
Developments and Further Customised Software Developments will
operate in a manner that HSBC might reasonably expect. Otherwise
SoftGen will make any rectifications to the Customised Software
Developments and Further Customised Software Developments without
delay and free of extra charge to HSBC for the rectification work to
ensure such normal or expected operation during the period before
User Acceptance.
5.3
SoftGen warrants that each installed copy of the Enhanced
Transaction Server Version 2.0 software product, using a Pentium II
450 MHz PC, 256MB RAM and configured as IBM3270 interface, together with
Windows NT 4.0 operating system (Service Pack 5), SNA Server 4.0 and
Rumba shall support without degradation in comparison to equivalent
teller terminal service and with no measurable transit delay up to
**** concurrent agent/client sessions to an attached computer host
system, providing there are no contributory HSBC network delays and
provided the SNA Server is directly attached to the host via LAN with
no intervening network routing, switching or access equipment.
5.4
SoftGen warrantees that each installed version of the Basic
Transaction Server Version 1.0 software product, using a minimum
Pentium 233 MHz PC, 128 MB RAM and configured as IBM3270 interface,
together with Windows NT 4.0 operating system, SNA Server 4.0 and
Rumba without degradation in comparison to equivalent teller terminal
service and with no measurable transit delay shall support a maximum
of **** concurrent agent/client sessions to an attached computer host
system, providing there are no contributory HSBC network delays and
provided the SNA Server is LAN attached to the host via LAN with no
intervening network routing, switching or access equipment.
5.5
For any failure due to Operating Program error, SoftGen warrants
that each installed version of the Transaction Server software
products (Basic Version 1.0 and Enhanced Version 2.0) shall be able
locally to be restored to normal operational service within 60 minutes
of the time at which and providing qualified HSBC technical staff
intervene to take action to restore the failure.
6.0 Installation/Delivery
6.1
SoftGen warrants that the Operating Programs and Further Operating
Programs can be imported and operated in the territory of Hong Kong,
the United Kingdom and Channel Islands, the United States of America,
Canada, Malaysia, Australia, Taiwan, India, Saudi Arabia and the
United Arab Emirates.
6.2
SoftGen agrees to inform HSBC at time of order should any approval
or license be required from a relevant authority for import or
operation of the Operating Programs and Further Operating programs
within the national territory designated at time of order by HSBC
for such import or operation. Failing this HSBC reserves the right
to cancel the order without any costs, liquidated damages and
liabilities whatsoever to HSBC as a result.
6.3
SoftGen will install and deliver to the designated technical
representatives of HSBC the Operating Programs in good working order
in the quantities listed and by the Installation Dates shown in
clause 7.1 below or by such other dates as are to be given in the
orders placed by HSBC to SoftGen (the "Installation Dates").
6.4
With not less than 30 days notice HSBC may delay the Installation
Dates of the Operating Programs or Further Operating Programs or
Customised Software Development by up to 60 days by informing
SoftGen in writing of the revised Installation Dates. In such event
for the purpose of payment for the Operating Programs or Further
Operating Programs or Customised Software Development the date of
Software Acceptance will be deemed to be 30 days after the
originally given Installation Date.
6.5
If SoftGen is unable to commence or complete installation of an
Operating Programs, Further Operating Programs or Customised
Software Developments by the agreed installation Date due to delay
or other reason on the part of HSBC and this delay has not been
communicated in writing to SoftGen by HSBC at least forty-eight (48)
hours prior to SoftGen arrival on site, SoftGen reserves the right
to charge HSBC for any associated travel and subsistence costs for
the period of delay at the Technical Assistance rates shown in
Schedule 4 with a minimum charge to HSBC of two man weekdays.
6.6
SoftGen will at their own expense insure the Operating Programs,
Further Operating Programs, Customised Software Developments or
Further Customised Software Developments against loss or damage
during shipment to any HSBC location where it is to be installed.
7.0 Software Acceptance/User Acceptance
7.1
The Operating programs and Customised Software Developments will be
delivered to the designated IT representative of HSBC for acceptance
testing by the following dates:
* Delivery Software Acceptance Testing 20 July 1998
* User Acceptance Testing 19 October 1998
7.2
SoftGen will provide free of extra charge to HSBC any Further
Operating Program or other software deemed by SoftGen to be
reasonably necessary for executing the acceptance tests. HSBC will
return such Further Operating Programs or other software to SoftGen
immediately upon successful completing of such acceptance tests.
7.3
Once Operating Programs, Further Operating Programs, Customised
Software Developments or Further Customised Software Developments
ordered by HSBC for a particular location have been delivered as
ordered SoftGen will receive in writing from an authorized officer
of HSBC formal acknowledgment that the softwares delivered have been
demonstrated to HSBC to be in full working order in accordance with
Schedule 5 or otherwise in accordance with the conditions specified
in the order ("Software Acceptance").
7.4
SoftGen warrants that those Operating Programs, Further Operating
Programs, Customised Software Developments or Further Customised
Software Developments delivered to HSBC and installed shall operate
without fault or error for a continuous warranty period of 30 days
after installation in conformance with Schedule 5 or other test
which may be agreed and presented by HSBC in writing to SoftGen
after which HSBC will confirm in writing within 30 days its complete
and final acceptance or the Operating Programs or Customised
Software Developments at that location (hereinafter "User
Acceptance") or otherwise any faults or errors identified.
7.5
Should no formal acknowledgment of Software Acceptance or User
Acceptance or advice of failure to comply with Schedule 5 or other
tests as agreed at time of order be received from HSBC by SoftGen
with 30 days of delivery of Operating Programs, Further Operating
Programs, Customised Software Developments or Further Customised
Software Developments then those softwares shall be deemed to have
passed automatically Software Acceptance and or User Acceptance as
applicable.
7.6
All faults or errors identified during the period of User Acceptance
of 30 days operation shall be rectified by SoftGen within 30 days of
report or the software may be replaced by SoftGen without additional
charge or the purchase price and Software Maintenance fees for that
software may be refunded at HSBC request.
7.7
On-site Technical Assistance or Consultancy may be requested by HSBC
within the 30-day warranty period of User Acceptance for which the
standard SoftGen Technical Assistance charges shown in Schedule 4
will apply.
8.0 Documentation
8.1
SoftGen will provide to HSBC free of charge one copy of manuals or
documentation describing each Operating Program, Customised Software
Development, Further Operating Program or Further Customised
Software Development purchased by HSBC including but not limited to
functions, facilities and methods of use.
9.0 Software Maintenance
9.1
SoftGen agrees to provide and HSBC shall agree to receive Software
Maintenance services for each Operating Program, Further Operating
Program, Customised Software Development and Further Customised
Software Developments as may be ordered by HSBC from time to time at
the prices given in Schedule 3 and in accordance with the applicable
terms and conditions listed hereafter.
9.2
SoftGen will include and HSBC shall undertake payment for Software
Maintenance services together with other onetime costs of order
quoted by SoftGen as specified in clause 15.6.
9.3
By agreement with SoftGen, HSBC may elect on the second annual
anniversary of the delivery and acceptance (Software Acceptance as
herein defined) of the Operating Programs, Further Operating
Programs, Customised Software Developments and Further Customised
Software Developments installed at any location to cancel Software
Maintenance services following three months notice provided to
SoftGen in writing in accordance with clause 24.1.
All SoftGen responsibility including updates, rectification and
Technical Assistance for those Operating Programs, Further Operating
Programs, Customised Software Developments and Further Customised
Software Developments for which Software Maintenance is cancelled by
HSBC will end.
9.4
SoftGen may refuse to recommence Software Maintenance services on
any Operating Programs, Further Operating Programs, Customised
Software Developments and Further Customised Software Developments
which HSBC wishes to bring into production use which SoftGen deems
to be unserviceable and for which HSBC has previously cancelled or
allowed Software Maintenance to lapse.
SoftGen will commence Software Maintenance of any Operating
Programs, Further Operating Programs, Customised Software
Developments and Further Customised Software Developments for which
HSBC has previously cancelled or allowed Software Maintenance to
lapse at SoftGen sole options and subject to an audit or review by
SoftGen at the fees provided herein for Technical Assistance as
given in Schedule 4 and at the Software Maintenance charges for
newly purchased products as given in Schedule 3.
9.5
Software Maintenance services shall be provided by SoftGen to the IT
staff of HSBC at the location specified at time of order or by
default to that HSBC location from which the order originated.
9.6
Software Maintenance services shall include provision of technical
support for and software update of each installed primary and
contingency version of the Operating Programs and Customised
Software Developments at each HSBC location.
9.7
SoftGen Software Maintenance services will commence to HSBC from the
first day of the calendar month following that calendar month in
which HSBC formally advises to SoftGen in writing receipt of the
software delivered and their acceptance of the Operating Programs or
Customised Software Developments installed (Software Acceptance as
heretofore defined).
10.0 Project Management
10.1
For those orders where HSBC requests SoftGen installation and
implementation ("SG Install" as defined herein) SoftGen will provide
and HSBC will receive Project Management services at the prices
given in Schedule 3b and in accordance with the applicable terms and
conditions listed hereafter.
10.2
SoftGen will not apply Project Management fees for those Operating
Programs, Further Operating Programs, Customised Software
Developments and or Further Customised Software Developments ordered
by HSBC from Schedule 2 attached where HSBC specifies at time of
order that installation and implementation will be provided by HSBC
resources alone ("HSBC Install" as defined herein). Should no such
specification be received Project Management fees shall apply.
11.0 Amendment of Operating Programs or Customised Software Developments
11.1
HSBC may not without the express permission in writing of SoftGen
amend, alter, add to or change any of the Operating Programs,
Further Operating Programs, Customised Software Developments or
Further Customised Software Developments provided to HSBC by
SoftGen.
11.2
Following any such alteration, those software license payments due
to SoftGen for each Operating Programs, Further Operating Programs,
Customised Software Developments or Further Customised Software
Developments for each HSBC site per seat per annum will continue,
but Software Maintenance will cease and all other SoftGen
responsibility including Technical Assistance for those Operating
Programs or Customised Software Developments so altered will end.
11.3
HSBC may request Technical Assistance or Software Maintenance for
those Operating Programs, Further Operating Programs, Customised
Software Developments or Further Customised Software Developments
altered by HSBC in which case SoftGen reserves the right to review
the software in question according to the standard Technical
Assistance prices given in Schedule 4. SoftGen will advise HSBC if
such support will be resumed in which case HSBC will recommence from
that point Software Maintenance at the prices given in Schedule 3 as
may be altered from time to time.
12.0 Technical Assistance
12.1
SoftGen will provide Standard or emergency Technical Assistance or
Consultancy to HSBC on written order or otherwise by verbal order
from an authorized officer of HSBC which verbal request is to be
confirmed by HSBC in writing within one week of request.
12.2
Standard or Emergency Technical Assistance will be provided to HSBC
according to the terms and notice given in Schedule 4 for those
Operating Programs, Further Operating Programs, Customised Software
Developments or Further Customised Software Developments for which
HSBC has paid the relevant license fees to SoftGen and undertaken
Software Maintenance as given in Schedules 2 and 3.
12.3
HSBC will designate a primary contact point for SoftGen within the
Information Technology (IT) division of HSBC ("designated IT
representative") through which Technical Assistance may be provided.
In absence of such designation by default this representative shall
be taken to the point of origin of the order received from HSBC.
12.4
SoftGen shall provide a telephone number in Dallas USA to which HSBC
IT staff may telephone to obtain Technical assistance remotely on a
24 hour 7 day basis.
12.5
HSBC shall provide to SoftGen at HSBC cost and billed directly to
HSBC an IDD telephone service (IDD Calling Card) to facilitate
SoftGen Software maintenance and Technical assistance to HSBC's IT
staff at long distance.
12.6
SoftGen shall provide Technical Assistance via SoftGen Senior
Architect and SoftGen Junior Architect staff onsite to HSBC
locations as requested at the Consultancy and Subsistence prices for
Weekday, Weekend and Public Holiday support shown in Schedule 4.
12.7
Public Holidays shall be taken to be those US holidays of Memorial
Day, Christmas Holidays, Thanksgiving Day, Labor Day and US
Independence Day.
12.8
SoftGen will receive if so requested by HSBC a leased data circuit
connection to HSBC or equivalent to be provided at HSBC cost for the
purpose of updates or changes to Operating Programs, completion of
Customised Software Developments, and other functional tests.
SoftGen will provide all reasonable assistance to allow HSBC to
complete these tasks.
12.9
SoftGen guarantees to maintain a level of availability, expertise,
numbers and geographical location of Software Architect staff
sufficient for SoftGen to carry out its obligations under this
Agreement.
13.0 Performance
13.1
Failure of Operating Programs or Further Operating Programs or
Customised Software Developments or Further Customised Software
Developments ("SoftGen Software") are defined as Level 1, 2, or 3 as
below.
* A level 1 Failure is defined as a single failure or malfunction of
SoftGen Software such that as a result less than 10% of the total agent
positions within that HSBC call centre suffer loss of normal operational
functions or degradation to the point where business operations are
prejudiced.
* A Level 2 Failure is defined as a single failure or malfunction of
SoftGen Software such that as a result more than 10% but less than 50% of
the total agent positions within that HSBC call centre suffer loss of
normal operational functions or degradation to the point where business
operations are prejudiced.
* A Level 3 Failure is defined as a single failure or malfunction of
SoftGen Software such that as a result more than 50% of the total agent
positions within that HSBC call centre suffer loss of normal operational
functions or degradation to the point where business operations are
prejudiced.
13.2
Those Failures defined above shall exclude those interruptions of
service or operation due to (1) HSBC abuse, misuse, negligence or
deliberate damage to SoftGen Software, (2) HSBC failure to maintain
the SoftGen Software environment in accordance with the SoftGen
specifications, (3) external telecom network or circuit failure, (4)
interruption scheduled in advance between HSBC and SoftGen.
13.3
SoftGen will receive advice from HSBC of SoftGen Software failures
by telephone or by agreed alternative 24 hours 7 days per week.
13.4
The "Time of Failure" is defined as the time of the receipt by
SoftGen from HSBC of a request for remedial maintenance containing a
"test log" being a written statement of the details of the failure.
If after 15 minutes HSBC has been unable to contact SoftGen due to
omission, absence, failure or other circumstance on the part of
SoftGen, the Time of Failure will be deemed to be 15 minutes after
the first recorded call attempt by HSBC.
13.5
The "Time of Repair" is defined as the time at which an employee of
SoftGen or its agent demonstrates to an authorized employee of HSBC
that normal operation has been restored and the SoftGen software is
restored to full working order. If no authorized HSBC employee is
available, the Time of Repair will be deemed to be the time at which
the employee of SoftGen or its agent telephones HSBC's Network
Control Centre or other designated HSBC contact point to confirm the
restoration of the SoftGen Software.
13.6
The "Down Time of a Failure" is defined as the elapsed time between
the Time of Failure and the Time of Repair excluding times when
SoftGen or their agents are unable to gain access to the SoftGen
softwares.
13.7
SoftGen guarantees that the Mean Times Between Failures will be not
less than the threshold shown in the table below:
Level Threshold
Level 1 30 days
Level 2 120 days
Level 3 360 days
13.8
In any case where the guarantees in clause 13.7 above are not met
for three consecutive months HSBC may at its sole option withdraw
Software Maintenance charges for the location and software in
question and require SoftGen at its expense to arrive on-site to
rectify the cause of failure. Software maintenance will be waived
until resolution is demonstrated to HSBC.
13.9
Notwithstanding the above SoftGen warrants that each installed
version of the Transaction Server software products shall maintain
on average a Mean Time Between Failure due to accepted software
error of at least 90 days providing that at that location HSBC is
operating the most recent minor release level of that Transaction
Server software product.
13.10
At any HSBC location and following any three consecutive occurrences
where the SoftGen Transaction Server has failed to meet the
performance standards set in clauses 5.3, 5.4 and or 13.9 above,
HSBC at its sole option may suspend Software Maintenance payments
and or receive at HSBC request and without additional charge
sufficient immediate Technical Assistance onsite from SoftGen by way
of SoftGen Software Architect Consultancy support and or further
copies of SoftGen Further Operating Program software to ensure that
the level of performance in clauses 5.3, 5.4 and or 13.9 will be
met.
13.11
Within 14 days after the end of each month HSBC at each location
will present SoftGen with a report of any SoftGen software failures
which commenced in that month.
14.0 Training
14.1
SoftGen will supply training services as specified in accordance
with Schedule 1 and at the prices to HSBC shown in Schedule 4 for
Technical Assistance.
15.0 Payment Terms
15.1
The period for receipt of payment by SoftGen of invoices received by
HSBC shall be 30 days.
15.2
SoftGen will submit to HSBC any invoice within 14 days of the date
of Software Acceptance or the date by which any SoftGen service has
been received by HSBC or earlier as hereinafter provided. Any
invoice received by HSBC from SoftGen more than 16 weeks from the
date on the service to which it refers was received by HSBC will be
declared null and void.
15.3
HSBC will pass for payment all valid invoices submitted by SoftGen
to HSBC within 14 days of receipt by HSBC.
15.4
Following SoftGen Acknowledgement of an order by HSBC for Further
Operating Programs alone SoftGen will deliver those Further
Operating Programs so ordered to the HSBC location specified and
will invoice to HSBC **** of the total onetime costs for the
Further Operating Programs at the prices given in Schedule 2
together with **** of the first annual Software Maintenance charges
as given in Schedule 3.
15.5
Following SoftGen Acknowledgement of an Order from HSBC for man-days
of Technical Assistance and consulting SoftGen will arrange such
assistance as required and will invoice to HSBC **** of the total
onetime costs for those man-days specified at the prices given in
Schedule 4.
15.6
Following SoftGen Acknowledgement of an Order from HSBC for the
Customised Software Developments or Further Customised Software
Developments together with any associated Operating Programs or
Further Operating Programs or for Technical Assistance or Project
Management SoftGen will invoice to HSBC and HSBC will pay according
to the following terms:
At Time of Order **** of total onetime costs quoted to HSBC
Following Delivery **** of total onetime costs quoted to HSBC
Following Software Acceptance **** of total onetime costs quoted to HSBC
15.7
SoftGen will bill all charges to the address and to the HSBC
representative designated within the order received from HSBC or by
default to the previously designated HSBC IT contact point as herein
provided.
15.8
SoftGen will make payment at cost directly to the various companies,
agencies and governments for any charges incurred for packing,
freight, insurance, customs clearance, importation duties and
taxation and all other charges incurred in connection with the
supply of Operating Programs, Further Operating Programs, Customised
Software Developments, Further Customised Software Developments or
Technical Assistance. SoftGen will provide any such receipts at
HSBC's request.
15.9
For the duration of this Agreement the prices for items of Further
Operating Programs, Further Customised Software Developments,
Software Maintenance and SoftGen Technical Assistance will be in
accordance with Schedules 2, 3, and 4 as applicable except that by
agreement with HSBC and on 3 months notice in writing to HSBC,
SoftGen may at its option and on each annual anniversary of Software
Acceptance at each location adjust these prices provided that such
adjustment does not result in an increase greater than 10%.
15.10
HSBC may request SoftGen from time to time to amend Schedule 2 to
add items to the Further Operating Programs price list as new
Operating Programs or components of Operating Programs made are
released by SoftGen.
16.0 Ownership
16.1
Title to the Operating Programs, Further Operating Programs,
Customised Software Developments and Further Customised Software
Developments shall remain with SoftGen.
17.0 Term
17.1
Unless terminated as hereinafter provided this Agreement shall exist
for five years from the date of signature.
17.2
Each party may terminate this Agreement at any time following the
fifth anniversary of date of signature by giving three months notice
in writing to the other party in absence of which this Agreement and
its terms an conditions will automatically continue on an annual
basis.
18.0 Termination
18.1
Any party will have the right to terminate this Agreement (1)
another party is guilty of a material or substantial breach of its
obligations herein and (2) the party seeking to terminate has
rendered written notice of the breach to the other parties in
accordance and (3) the party in breach has failed to remedy the
breach within at most ninety (90) days after receipt of such notice.
18.2
Notwithstanding the provisions of Clause 13.7, if the period of
delay beyond the end of the Software Acceptance or stated User
Acceptance Test (UAT) period exceeds 6 months due to action,
inaction or omission on the part of SoftGen then HSBC at its sole
option may terminate this Agreement or may require SoftGen free of
extra charge to HSBC and without contest or further delay to supply
additional or replacement copies of Further Operating Programs or
Operating Programs to meet Software acceptance or UAT requirements
or require the commitment of such additional SoftGen Technical
Assistance as may be necessary so that UAT requirements may be met
within three months of this request or may require SoftGen by formal
notice to supply functionally equivalent alternative Operating
Programs of similar quality manufactured by another company to be
selected by SoftGen.
In the event that HSBC chooses to request SoftGen to supply
functionally equivalent Operating Programs or Further Operating
Programs of similar quality as provided for above, this shall be
limited by the obligation to meet the functional requirements of
Clauses 5.3, 5.4, 5.5 and the functionalities of Schedule 5 and by
the choice of alternative supplier on the part of SoftGen.
18.3
If in any consecutive three months any one of the guarantees of
Clauses 5.4, 5.5 and 5.6 are not met at a particular location then
HSBC at its sole option following formal notice to SoftGen may
employ another company or without extra charge to HSBC require
SoftGen to employ another company of SoftGen choice for Software
Maintenance of any Operating Programs or Further Operating Programs
delivered to that location and SoftGen will supply to that other
company all reasonable information, assistance and spare parts
necessary for them to maintain the Operating Programs or Further
Operating Programs.
18.4
If any party terminates this Agreement under clauses 18.1 or 18.2
then all parties agree to submit to arbitration for assessment of
the damages to be paid upon such termination and agree to be bound
by the arbitrator's decisions.
Any liability for such damages on the part of SoftGen shall not
exceed the cumulative total to date paid to SoftGen by HSBC globally
since signature of this Agreement for all services or maintenance
performed by SoftGen under this Agreement.
It is agreed that one arbitrator will be appointed by each and that
they will appoint an umpire immediately after they themselves have
been appointed. The umpire will sit with the arbitrators but will
only enter upon the assessment if the arbitrators are unable to
reach agreement.
18.5
Any party will have the right to terminate this Agreement forthwith
by giving notice in writing to the others in the event that another
party (1) suffers a receiver to be appointed for its affairs or
property or (2) enters into an assignment or other arrangement for
the benefit of its creditors or (3) suffers an attachment against or
a seizure of a substantial part of its assets or its parts
inventory.
18.6
In the event of termination of this Agreement under Section 18 those
provisions thereof that by their nature should survive will survive
the termination.
19.0 Force Majeure
19.1
No party to this agreement will be liable to the other nor held in
breach of this Agreement if prevented hindered or delayed in
performance or observance of its obligations hereunder by conditions
beyond its reasonable control.
20.0 Risk of Loss or Damage
20.1
SoftGen will be responsible for all risk of loss or damage to the
Operating Programs, Further Operating Programs, Customized Software
developments and/or Further Customised Software Developments up to
the time of receipt by HSBC at the place of delivery.
20.2
HSBC will be responsible for all risk of loss or damage to the
Operating Programs, Further Operating Programs, Customized Software
Developments and/or Further Customised Software following the
receipt of delivery onto HSBC premises.
20.3
SoftGen will indemnify and/or rectify without charge to HSBC for all
damage to the Operating Programs, Further Operating Programs,
Customized Software developments and/or Further Customised Software
following delivery HSBC premises where such damage is caused by
action, inaction, omission or negligence on the part of SoftGen.
21.0 Confidentiality/Publicity
21.1
All parties to this Agreement and their employees acknowledge all
material and information that has or will come into the possession
or knowledge of each in connection with this Agreement or the
performance hereof consists of confidential and proprietary data
whose disclosure to a third party may be damaging.
21.2
All parties and their employees agree to hold and use such material
and information and contents of this Agreement as company
confidential whose disclosure to any third party shall render any
advantage of price or other advantage contained herein liable to
removal, at the option of the other party, all other terms
continuing.
21.3
SoftGen shall not disclose the making of this Agreement in any
journal magazine or publication or otherwise use HSBC's name in any
of its advertising material without HSBC's prior written consent.
Such consent is given at HSBC's absolute discretion and is not to be
unreasonably withheld.
22.0 Agents/Assignment of Right and Obligations
22.1
HSBC may receive SoftGen CIMphonyTM software products and services
via a third party, or other corporate agents or distributors only
following receipt of a prior written notice and agreement from
SoftGen in accordance with clause 25.
22.2
SoftGen may appoint agents or distributors of SoftGen CIMphony
software products and services by prior agreement with HSBC to
provide sales, Software Maintenance or Technical Support services
described in this Agreement in which case such agents or
distributors will assume as applicable those responsibilities herein
attributable to SoftGen. SoftGen will remain liable for all
guarantees and conditions contained in this Agreement.
22.3
Any agents so appointed by SoftGen to provide to HSBC any SoftGen
CIMphony software products and services herein described will do so
at the prices given in Schedules 1, 2, 3, 4 appended and under those
terms and conditions described or at prices and under terms and
conditions accepted by HSBC as being more advantageous than those
herein.
22.4
Prior to the relevant Installation Dates SoftGen will provide to
HSBC in writing full contact details and obtain HSBC agreement of
any maintenance agents which may be proposed to assume any SoftGen
responsibilities under this Agreement. SoftGen warrants that formal
training will be provided to the technical staff of any agents so
agreed before these dates to a level sufficient to allow them to
fulfill their obligations under this Agreement.
23.0 Limitation of Liability
23.1
Notwithstanding anything herein to the contrary, no party hereto
will be liable hereunder for any consequential or indirect damages
excepting penalty sums or liquidated damages specified or assessed
as described herein.
24.0 Patent and Copyright Indemnity
24.1
SoftGen will indemnify and hold HSBC harmless against all claims,
liabilities and costs including reasonable attorney's fees for the
defense of any claim or suit of alleged infringement by SoftGen's
Operating Programs or Customised Software Developments of any
patent, copyright or the trademark, trade secret or unfair
competition rights of any third party provided that HSBC gives
SoftGen prompt written notice of such claim or suit and that SoftGen
is permitted to control the defense and settlement of the claim or
suit.
HSBC will fully co-operate in the defense of any such claim or suit
and may appear at its own expense through counsel of its choice.
SoftGen may settle any such claim or suit on a basis which requires
SoftGen to substitute for the Operating Programs or Customized
Software Developments functionally equivalent alternative Operating
Programs or Customised Software Developments or other software of
similar quality.
SoftGen will not be liable to HSBC if the infringement or claim or
infringement is based upon (1) use of the Operating Programs,
Further Operating Programs and/or Customised Software Developments
in combination with products or software not supplied by SoftGen
thereby giving rise to the infringement or (2) use of the Operating
Programs, further Operating Programs and/or Customised Software
Developments in practicing any process not contained in the written
application specifications received by SoftGen or (3) modification
of the Operating programs, Further Operating Programs and/or
Customised Software Developments by HSBC or any third party of (4)
compliance with the designs, plans, specifications or instructions
of HSBC.
25.0 Notices
25.1
Any written notice required to be given hereunder will be deemed
sufficient if sent by first class mail, postage prepaid courier
service, or facsimile addressed to the other party at the address
set forth in the first page of the agreement or as given below:
HSBC Holdings plc
Group Head of Telecommunications
HSBC Holdings plc
00 Xxxxx Xxxxxx Xxxxxx
Xxxxxx XX0X 0XX
SoftGen International
Xx. Xxxxxx Xxxxxx
President
SoftGen International
0000 Xxxxx Xxxxxxx Xxxxxxxxxx
Xxxxx 0000, Xxxxxx, XX 00000
Fax x0 (000) 000-0000
26.0 Amendments to this Agreement
26.1
This Agreement may be changed only by the agreement of both parties
in writing and may not be changed or terminated orally.
26.2
Orders of additional Further Operating Programs and/or Further
Customised Software Developments from subsidiaries, associate and
managed companies of HSBC Holdings plc will be placed and received
only under the terms of this Agreement and may be included herein by
the addition from time to time of written addenda ("Amendments")
which will specify the SoftGen products and services required and by
agreement the details of supply or operation or other conditions
particular to that order.
27.0 Law
27.1
The construction, validity and performance of this Agreement shall
be governed in all respects by the Law of England and the parties
hereto hereby submit to the jurisdiction of the English Courts.
28.0 Extension of Time
28.1
Unless elsewhere so provided within this Agreement where the
performance by SoftGen is prejudiced due to act, omission or delay
on the part of HSBC the date for completion or delivery of the
relevant contract obligations will be automatically extended by a
period of time equal to the delay imposed and SoftGen will be
entitled to charge HSBC for its reasonable and actual costs
occasioned by such delay. SoftGen will take any reasonable action
to mitigate such costs.
29.0 Taxes
29.1
HSBC will pay at cost on submission of the invoice by SoftGen any
taxes associated with HSBC purchase under this Agreement of SoftGen
Operating Programs, Further Operating Programs, Customised Software
Developments and Further Customised Software Developments. HSBC
will not be liable for any taxes based on gross or net income of
SoftGen or its agents or distributors.
30.0 Millennium Year 2000 Change
30.1
SoftGen warrants that the Operating Programs, Further Operating
Programs, Customised Software Developments and Further Customised
Software Developments are fully compatible at time of acceptance by
HSBC with the millennium date change for the Year 2000 and
associated date-related dependencies including but not limited to
(I) the change from 1999 to 2000 (ii) 29 February 2000 (iii) the
change from 2000 to 2001 and (iv) system purge dates such as 9.9.99.
In addition, SoftGen warrants that the Operating Programs, Further
Operating Programs, Customised Software Developments and Further
Customised Software Developments shall not incur any failures or
errors as a result.
30.2
In the event of any error or failure in the Operating Programs,
Further Operating Programs, Customised Software Developments and
Further Customised Software Developments as delivered and accepted
by HSBC attributable to the millennium date change SoftGen shall use
its best endeavors to modify the aforementioned software and SoftGen
components supplied by SoftGen to correct without delay such error
or failure.
30.3
SoftGen will provide to HSBC demonstration or evidence that the
aforementioned software components are compliant with the standards
specified in Clause 30.1 above prior to end June 1999. SoftGen will
provide to HSBC without additional charge whatever Operating program
or other SoftGen software products are needed to assist HSBC at its
choice to undertake testing of the Operating Programs, Further
Operating Programs, Customised Software Developments or Further
Customised Software Developments.
30.4
SoftGen shall have no obligations to HSBC under this Agreement other
than specifically provided herein in respect of Operating Programs,
Further Operating Programs, Customised Software Developments or
Further Customised Software Developments which may have been altered
or amended or changed without SoftGen assistance following delivery
and acceptance by HSBC.
31.0 Indemnity and Insurance
31.1
SoftGen shall indemnify and keep indemnified HSBC to the extent
caused by SoftGen against injury (including death) to any persons on
HSBC premises (including any employee, agent, sub-contractor or
representative of SoftGen) or loss of or damage to any property
which may arise out of any act or omission (whether caused by
negligence or not) of SoftGen or of any sub-contractor, employee,
agent or representative of SoftGen arising out of or in consequence
of SoftGen's obligations here-under and against all claims, demands,
proceedings, damages, costs, charges and expenses whatsoever in
respect thereof or in relation thereto.
31.2
Without limiting SoftGen responsibilities under clause 28.1 above,
SoftGen shall insure with a reputable insurance company against all
loss and damage specified in Clause 28.1 above. In the event of
such claims, demands, proceedings, damages, costs, charges and
expenses whatsoever in respect thereof or in relation thereto,
SoftGen shall produce to HSBC such policy of insurance and receipts
for premiums in respect thereof if called upon to do so.
32.0 Computer Virus
32.1
SoftGen and HSBC shall use commercially reasonable best efforts to
ensure that no computer virus is introduced onto HSBC's internal
environment or internal systems or networks by any act, omission or
negligence on the part of their employees, agents or sub-
contractors.
32.2
In the event that a computer virus is so introduced by any act,
omission or negligence of SoftGen and/or SoftGen employees, agents
or sub-contractors SoftGen will use all reasonable endeavors to
restore the Operating Programs, Further Operating Programs,
Customised Software Developments and Further Customised Software
Developments used by HSBC to normal operation.
32.3
No Operating Programs, Further Operating Programs, Customised
Software Developments and Further Customised Software Developments
or other software may be loaded on any HSBC internal system or
network by SoftGen without prior approval from HSBC.
33.0 Ownership / Intellectual Property Rights / Source Code
33.1
The ownership of all SoftGen Operating Programs, Customised Software
Developments, Further Operating Programs or Further Customised
Software Developments as listed in Schedules 1 and 2 rests with
SoftGen who shall retain all rights in the source code.
34.1
SoftGen on HSBC's formal request in writing and at HSBC cost will
organize and arrange for the placement in commercial escrow of one
complete copy of the source code of any Operating Programs, Further
Operating Programs, Customised Software Developments and Further
Customised Software Developments designated by HSBC as at date of
HSBC acceptance with the documentation used in the compilation of
such with a specialist company of SoftGen recommendation in such a
manner that HSBC may have unimpeded usage of or title to that
software in the event that SoftGen should cease to trade for any
reason or file for bankruptcy or the provision by SoftGen of the
source code to other users of SoftGen products.
35.0 Schedules
35.1
SoftGen will seek to maintain to date the accuracy of the
information provided in the Schedules of detail attached hereto
which are incorporated in and form part of this Agreement.
Appended Schedules
The following Schedules of detail are attached hereto and are
included within and made applicable to this Agreement:
Schedule 1 - The Operating Programs and Customised Software
Developments
Schedule 2 - SOFTGEN CIMphonyTM Pricing (HSBC Group)
Schedule 3 - SOFTGEN CIMphonyTM SOFTWARE MAINTENANCE SERVICES
SOFTGEN CIMphonyTM PROJECT MANAGEMENT SERVICES
Schedule 4 - SOFTGEN TECHNICAL ASSISTANCE
Schedule 1
1a) THE OPERATING PROGRAMS
****
Contract Onetime Software License Costs USD ****
1b) THE CUSTOMIZED SOFTWARE DEVELOPMENTS
Contract Onetime Costs USD ****
1c) SOFTGEN SOFTWARE MAINTENANCE
Contract Costs Per 12 months USD ****
1d) SOFTGEN TECHNICAL ASSISTANCE / CONSULTANCY
Contract Onetime Costs USD ****
1e) SOFTGEN TRAVEL / SUBSISTENCE
Contract Onetime Costs USD ****
Subsistence
1f) SOFTGEN TRAINING
Contract Onetime Costs USD ****
Schedule 2
2) SOFTGEN CIMphonyTM Pricing (HSBC Group)
2a) CTI SERVER STANDARD SOFTWARE - ONETIME COSTS
****
2c) CLIENT WORKSTATION STANDARD SOFTWARE - LICENSE
****
Schedule 3
3a) SOFTGEN CIMphonyTM SOFTWARE MAINTENANCE SERVICES
SoftGen shall provide software maintenance services to HSBC according to
the terms of this Agreement, and in respect of those standard SoftGen
CIMphonyTM products listed in Schedule 2 installed by HSBC as shown in
Schedule 1 (the Operating Programs) together with those software
developments (Customized Software Developments) for HSBC by SoftGen, at
the annual percentages of the installed total onetime costs of Operating
Programs, Further Operating Programs, Customised Software Developments or
Further Customised Software Developments and the one time Software
Licenses at each site as shown below:
Percentage of installed total onetime cost
First 12 Each 12 months
months thereafter
**** ****
Software Maintenance support
(by SoftGen Inc. or its agents to HSBC IT)
[*not applicable to subsistence, travel and training costs]
3b) SOFTGEN CIMphonyTM PROJECT MANAGEMENT SERVICES
SoftGen shall provide Project Management services to HSBC according to
the terms of this Agreement, and in respect of those standard SoftGen
CIMphonyTM products listed in Schedule 2 installed by HSBC as shown in
Schedule 1 (the Operating Programs) together with those software
developments (Customised Software Developments for HSBC by SoftGen, at
the percentages of the installed total onetime costs of Operating
Programs, Further Operating Programs, customised Software Developments or
Further Customised Software Developments at each site as shown below:
Percentage of total onetime
Software or customization cost
CTI SERVER STANDARD SOFTWARE (See 2a) ****
CLIENT WORKSTATION STANDARD SOFTWARE (See 2c) ****
HSBC CUSTOMISED COMPOSITE GUI DESKTOP CLIENT (See 2d) ****
FURTHER CUSTOMISED SOFTWARE DEVELOPMENTS ****
(Any software developments particular to, specified
and requested by HSBC at time of order)
2d) HSBC CUSTOMISED SOFTWARE DEVELOPMENTS
****
Onetime License USD per seat per site
(12) HSBC Customised Composite GUI desktop client software (as at 1
October 1999):
Each HSBC Onetime License
Seat from per Seat per Site
**** ****
Schedule 4
4) SOFTGEN TECHNICAL ASSISTANCE
SoftGen shall provide Technical Assistance via SoftGen Senior Software
Architect and Junior Software Architect staff onsite at HSBC locations as
requested according to the terms and conditions of this Agreement and at
the Consultancy and Subsistence prices for Weekday, Weekend and Public
Holiday support shown below:
AT STANDARD NOTICE OF REQUEST
(Received by SoftGen more than 4 days prior to start of requirement)
Per Weekday Per Saturday Per USA
or Sunday Public
Holiday**
SoftGen Consulting
Tariff:
- Senior Software Architect **** **** ****
- Junior Software Architect **** **** ****
SoftGen Subsistence Tariff
- Hotel Accommodation ****
- Subsistence per diem ****
- Air Fare
(International origin or Intl. ****
destination)
(USA or Canada origin or ****
destination)
** USA Public Holidays applicable: Memorial Day, Christmas Days,
Thanksgiving Day, Labor Day, Independence Day
ANY EMEMERGENCY NOTICE OF REQUEST
(Any request received by SoftGen at or less than 4 days prior to start of
requirement)
SoftGen Consulting Tariff:
- As above, multiplied by two (x2)
SoftGen Subsistence Tariff:
- Hotel Accommodation As above
- Subsistence per diem As above
- Air Fare
As above, multiplied by two (x2)
Schedule 5
Hongkong and Shanghai Banking Corporation Limited
Call Centre System Phase 1
EXTERNAL DESIGN FUNCTIONAL SPECIFICATIONS
(Not attached)
