ADDENDUM “D” TO MASTER SERVICES AGREEMENT
Exhibit
10.93
ADDENDUM
“D”
This
agreement between Ness
USA, Inc., located at
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (“SUPPLIER”) and Chordiant Software, Inc.
located at ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (“CHORDIANT”) is an
Addendum dated March 19, 2009 (the “Addendum”) to the Master Services Agreement
executed on December 15, 2003 between SUPPLIER and CHORDIANT, as amended (the
“Agreement”).
WHEREAS
the parties hereto wish to modify certain terms of the Agreement and to
memorialize additional terms, as more fully set forth below.
Accordingly,
in consideration of the promises and covenants set forth below, the parties
agree as follows, intending to be legally bound:
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1.
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The
document attached to this Addendum as Exhibit A is hereby made a part of
the Agreement as the form of Attachment 2.5-C Professional Services Line
of Business Statement of Work, Attachment to Exhibit 2.5, Professional
Services of Business Description.
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2.
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With
the exception of the foregoing changes, the terms and conditions of the
Agreement shall remain in full force and
effort.
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IN
WITNESS WHEREOF, the parties have executed this Addendum, intending to be
legally bound, as of the date first written above.
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Accepted
by:
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Accepted
by:
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/s/
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/s/
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Name
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Name:
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▇▇▇▇▇
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Title:
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General
Counsel
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Title:
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Chief
Financial Officer
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Date:
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3/19/09
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Date
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March
20, 2009
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For:
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Ness
USA, Inc.
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For:
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Chordiant
Software, Inc.
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Exhibit
A
Attachment 2.5-C
20__
Professional Services LoB Statement of Work
Attachment
to Exhibit 2.5 Professional Services of Business Description
This
20__ Professional Services Line of Business Statement of Work (“SOW”) is
incorporated into the Master Services Agreement dated December 15, 2003 by
and between Ness USA, Inc. (“Ness” or “Supplier”) and Chordiant Software, Inc.
(“Chordiant”), as amended (for the purposes of this Statement of Work, the
“Agreement”) with the exception of certain Clauses that do not pertain to the
Professional Services Line of Business (“Exclusions”). Such Exclusions have been
identified in Section 11 (Assumptions, Dependencies, and Exclusions) in this document.
Capitalized terms used but not defined in this Addendum shall have the meaning
ascribed to them in the Agreement.
This
SOW describes Services and Deliverables to be performed and provided by Ness
under the Professional Services Line of Business pursuant to the
Agreement. Chordiant desires to use the technical and consulting services
of Ness Associates, and Ness agrees to provide such services under the terms and
conditions detailed in this document.
The
Ness Associates would be deployed at onsite projects in the United States to
implement Chordiant products and technology under the guidance of the Chordiant
Consulting Services Manager and/or the Project Manager and to work on internal
Chordiant projects at Chordiant’s engineering center in Bedford, New
Hampshire. Chordiant will also designate a “PSO Program Manager”
herein referred to as the Chordiant PSO Program Manager.
1. Scope
of Project / Duration
Chordiant
has engaged Ness to provide Supplemental Staff under a Sub-Contracted, Time and
Materials Basis (T&M) for specific Chordiant Professional Services
Projects.
This
SOW shall be effective from ____________ (“Effective Date”), and shall remain in
effect for ____________________.
2. Customer
Projects.
A. Roles, Resources and
Rates:
The
following table sets forth the respective roles and rates for each Ness
Associate who is available to work on a Chordiant customer
project. This table will be re-evaluated each six months during the
duration of this SOW to add, remove or re-characterize Ness
Associates.
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Tiers
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Roles
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Resources
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Hourly
Rates
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Tier
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$
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A work week is 40 hours
long. Payment of overtime or weekend work will be handled on a
case-by-case basis and will be governed by the terms of Chordiant’s agreement
with the customer, as well as applicable federal, state and local
law. All overtime and weekend work must be approved by the Chordiant
project manager or the Chordiant PSO Program Manager.
Ness will not charge for vacation
time.
B. Expense
Policy: In addition to paying the hourly rates set forth
above, for each Ness Associate assigned to a Customer project, Chordiant will
reimburse Ness for the travel and lodging expenses of each Ness
Associate. The Travel and Expense Policy set forth in Section 7 below
will apply.
C. Modifications to Exhibit
A. Chordiant and Ness acknowledge that the resources listed on
Exhibit A
hereto may be modified by the parties from time to time upon the execution of an
amendment to this SOW.
3. Internal
Projects.
A. Roles, Resources and
Rates: Each Ness Associate listed on Exhibit A who is
assigned to work on an internal Chordiant project will be billed to Chordiant at
an hourly rate of $___, regardless of which Tier they are listed in under
Section 2 above or which hourly rate they would have been paid if they had been
assigned to a customer project, except for Tier 1 Associates who will be billed
at an hourly rate of $___.
B. Expense
Policy:
1. For
each Ness Associate listed on Exhibit A who is
assigned to work on internal Chordiant projects for a pre-determined period of
more than three months, the Expense Policy set forth in Section 7 below will not
apply. Chordiant will not reimburse Ness for the travel and lodging
expenses of any Ness Associate assigned to an internal Chordiant project for a
pre-determined period of more than three months. However, Chordiant
may request Ness to have the Ness Associate relocate to a given location at
Ness’s sole cost and expense.
2. For
Ness Associates listed in Exhibit A assigned to
an internal Chordiant project for a pre-determined period of less than three
months, in addition to paying the hourly rates set forth above for each Ness
Associate, Chordiant will reimburse Ness for the travel and lodging expenses of
each Ness Associate. The Travel and Expense Policy set forth in
Section 7 below will apply.
4. EPC
Transferees.
a. For
each Ness Associate who is transferred from the Chordiant - EPC in Bangalore,
India to work on a customer project or an internal Chordiant project for an
engagement of pre-determined duration of three months or less, such Ness
Associate will be paid at the same rate as if the Ness Associate was still
located at the Chordiant – EPC in Bangalore, India and will be entitled to
reimbursement for their travel and lodging expenses. The provisions
of the preceding sentence shall supersede the provisions of Section 2 and 3
above. Additionally, Chordiant will be invoiced for such Ness
Associate under the applicable Line of Business SOW for the EPC, not under this
Professional Services Line of Business SOW. If, however, at the end
of the pre-determined three month period, the Ness Associate who transferred
from the Chordiant-EPC in Bangalore, India is requested to continue working on a
customer project or internal Chordiant project, or is transferred
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to
a new customer project or internal Chordiant project, then the provisions of
Section 2 and 3 above shall apply, and Chordiant shall be invoiced for such Ness
Associate under this Professional Services Line of Business SOW. This section is
subject to availability of appropriate visa and compliance with the applicable
immigration and local laws.
b. If
a Ness Associate is transferred from the Chordiant - EPC in Bangalore, India to
work on a customer project or an internal Chordiant project for an engagement of
pre-determined duration of more than three months, the billing and reimbursement
policy for such resource will be subject to the applicable provisions of Section
2 and 3 above, and Chordiant will be invoiced for such Ness Associate under this
Professional Services Line of Business SOW.
c. At
the end of any engagement by a Ness Associate who is transferred from the
Chordiant – EPC in Bangalore, India, (i) they may return to the Chordiant – EPC
in Bangalore, India, or (ii) they may added to Exhibit A hereto, as determined
by Chordiant in its sole discretion on a case-by-case basis.
5. Training.
Training
for new Ness Associates will be conducted as and when
required. Training will be conducted by the Ness trainers, or
trainers designated by Chordiant at Ness Bangalore – India or Ness-USA
facilities, at the sole cost and expense to Ness. Additionally, Ness
will pay the cost of the certification exam. Ness may not ▇▇▇▇
Chordiant for the time any Ness Associate spends in training.
All
Ness Resources listed on Exhibit A as of the
date of execution of this SOW automatically qualify for Chordiant certification,
if they are not already certified. Ness will pay the cost of the
certification exam.
6. Project
Schedule/Milestones/Acceptance.
The
Chordiant PSO Program Manager or the Chordiant Account Project
Manager/Consulting Services Manager, who shall be a Chordiant employee, shall be
completely responsible for the management and direction of the Ness Associates
and the Services provided by Ness under this SOW. The work done by
the Ness Associates will be performed onsite in the US at Chordiant customer
sites or at Chordiant offices. No Acceptance or Acceptance Criteria are
applicable under this SOW.
7. Travel
and Expense Policy.
Travel & Expenses
(T&E): Chordiant will reimburse Ness for travel, lodging
and per diem expenses of each Ness Associate deployed to a Chordiant customer
location at actual costs as per Chordiant’s travel and expense
policy. In the case that Chordiant has agreed with a customer to use
their travel and expense policy, such travel and expense policy will take
precedence over Chordiant’s travel and expense policy, as long as the customer
travel and expense policy is consistent with the agreed upon intentions of Ness
and Chordiant, and is generally consistent with industry
practices. Expenses for Ness Associates living in the city where the
customer location is will not be reimbursed unless such expenses are reimbursed
by the customer.
All
Travel and Expenses will be pre-approved by the Chordiant Project Manager or the
Chordiant PSO Program Manager, and these will be used as the basis for billing
T&E to Chordiant. All other
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T&E
(Visa, flybacks to India, or other non-billable (to Chordiant customer) travel)
must be pre-approved by the Chordiant PSO Program
Manager or the VP of North America Consulting.
Time
Sheets will be approved by Chordiant Professional Services Manager, and these
will be used as the basis for billing Service Fees to Chordiant.
8. Billing
Frequency
Ness
will ▇▇▇▇ Chordiant for services on a monthly basis, to be paid Net 30 days of
date of receipt of Invoice.
Travel
& Expenses (T&E) will be billed to Chordiant on a two week basis to be
paid Net 15 days of Date of Invoice. The Ness Associates will be
required to enter all time and expense information into Chordiant’s T&E
system, OpenAir, within 1 business day following month-end. Chordiant
will issue an electronic mail reminder to all Ness Associates that have not
submitted their time information within 3 business days from the end of the
billing cycle. The Ness Associates will be required to input all of
their time by close of business the second business day after the month
close. The Ness Associates will be required to input all of their expenses by
close of business the fifth business day after the month
close. Failure to enter time or expense in a timely manner will result in
the forfeiture of fees or out-of-pocket expenses. If an expense report is
submitted after the fifth business day after the month close, due to a Chordiant
internal issue or an operational failure of the time entry system, or a delay in
receiving invoices or bills from third party vendors, such amounts will not
result in forfeiture.
9. Quality
and Remedy:
From
and after the Effective Date, in case of a performance
issue with any Ness Associate(s) identified in writing by Chordiant to Ness,
Chordiant may place such Ness Associate(s) in a “Remedy Period” of two (2)
weeks. Chordiant and Ness shall mutually agree on what remedial
action should be taken with respect to such Ness Associate(s) during the Remedy
Period. Upon completion of the Remedy Period, the Ness Associate will
be either reassigned to an assignment or terminated by Chordiant. All the above
actions (identification of performance issue, completion of the Remedy Period,
the action taken after the Remedy Period) will be taken upon notification to
Ness by Chordiant, and will be accompanied by all the required supporting
documentation.
During
the Remedy Period the Associate can either be onsite or be sent back to
Ness–India, as determined by Chordiant in its sole discretion. Upon completion
of the Remedy Period, in case the Program Managers agree to terminate the Ness
Associate, Chordiant will pay 50% of all services fees incurred while the Ness
Associate was onsite during the Remedy Period, but will not pay any services
fees while the Ness Associate was offshore during the Remedy
Period. After the Remedy Period, Chordiant may also place a Ness
Associate on unpaid status, pending assignment to his or her next internal or
customer project.
10. Personnel
Equipment
Ness
will provide the appropriate infrastructure (laptop computer, software) for all
Ness Associates. Ness will provide the desktops to the Ness
Associates while working at Ness-Mumbai. Ness will also provide network
connectivity between the Chordiant-EPC in Bangalore-India and
Ness-Mumbai.
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11. Assumptions,
Dependencies and Exclusions.
The
parties agree that the services to be provided under this Statement of Work are
substantially different than those contemplated at the time the parties executed
the Agreement. Accordingly, several provisions of the Agreement are not
applicable to this Statement of Work and it is hereby agreed that such clauses
shall not be applicable with respect to this Statement of Work.
Specifically, the following provisions of the Agreement shall not be applicable
to this Statement of Work:
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Section
3.1(e), 3.1(f);
Section
3.2 (a)-(g), (h) 3.3, 3.4
Section
3.6, 3.7, 3.8, 3.9, 3.10;
Section
4.1, 4.2, 4.3, 4.4, 4.5;
Section
5.2;
Section
8;
Section
9;
Section
10;
Section
11.2, 11.4, 11.6, 11.7(a), (c) and 11.9;
Section
12;
Section
13.2;
Section
13.9, 13.10;
Section
14.2;
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Section
16.1;
Section
17.1, 17.2, 17.3;
Section
17.5;
Section
17.8, 17.9, 17.10;
Section
24 ;
Section
25;
Section
26;
Section
27.3;
Section
28.3(a)(ii);
Section
30; and
Section
31.1.
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For
the sake of clarification, the foregoing exceptions shall not apply to any Ness
Associate performing work under the applicable Line of Business Statement of
Work for the EPC described in Section 4.a. above. The remaining
provisions of the Agreement shall remain in full force and effect and shall
continue to govern this Statement of Work. Notwithstanding the foregoing,
in the event any provision of this Statement of Work conflicts with a provision
of the Agreement, the provision in this Statement of Work shall
control.
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Chordiant Software,
Inc.
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Ness
USA, Inc.
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Signed:
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Signed:
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Name
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Name:
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Title:
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Title:
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Dated:
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Dated:
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Exhibit
A
Resources
Page 7 of
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