VODAFONE GROUP SERVICES LIMITED AND CHORDIANT SOFTWARE , INC.

Supplier will provide Updates for the Standard Software as and when developed for general release in Supplier’s sole discretion.

19.8 SGC warrants and represents that all Documentation provided and training given to VGC, its employees and designated third parties shall provide adequate instruction to enable VGC, its sub-contractors and distributors to make full and proper use of the Products. All Documentation and training shall be provided in English unless otherwise agreed in the CoA or otherwise as is required by the laws affecting VGC. In the event that VGC detects an error or omission in any Documentation or Training, SGC shall at no additional cost promptly correct the error or omission.

19.9Breach of Warranty for Products and Services

19.9.1 Without prejudice to any other remedies available to VGC under the CoA or otherwise, SGC undertakes at its own cost and risk to correct any Software Products which fail to comply with any part of the warranty described in Section 19.4 above during a period of [ * ] from the Delivery Date or (where applicable) Acceptance (whichever is later). SGC shall ensure that any corrected Software shall comply with the Specifications and match the original faulty Software in all respects except the fault itself. Provided that VGC gives SGC written notice of a breach of the foregoing warranty during the warranty period, SGC shall, correct any reproducible errors that cause the breach of the warranty or if SGC is unable to make the Software operate as warranted within 90 days of notification, VGC shall be entitled to terminate its license for such Software Products and recover the fees paid to SGC for such license.

19.9.2 SGC shall ensure that all corrections are carried out within the agreed response and resolution times set forth in the in Schedule 4.

19.9.3 Services. Without prejudice to any other remedies available to VGC under the CoA or otherwise, if in VGC’s discretion any Services are found to be in breach of Section 19.6 the first 90 days after performance or (where applicable) Acceptance, then VGC shall be entitled at its own option to require SGC within 5 Business Days, to:

19.9.4.1perform those Services again; or

19.9.4.2

provide such additional Services as shall be necessary to make good the fault.

19.6.4.

19.9.5 If Supplier is unable to make good the fault after notice and a reasonable opportunity to remedy the situation, then Supplier will pay VGC all costs incurred by VGC in obtaining such Services from a third party at the SGC’s cost Provided that VGC gives SGC written notice of a

breach of the foregoing warranty during the warranty period, SGC shall, correct any reproducible errors that cause the breach of the warranty or if SGC is unable to rectify the problem within 90 days of notification, VGC shall be entitled to terminate its right to use the Development Work associated with such Services and recover the fees paid to SGC for such Services.

19.10Extension of Warranty

19.10.1The period of the warranties set out under Clause 19.10 shall be extended by a period equal to the period the Products, Services or that portion thereof in which a defect or failure to which this Clause 19 applies cannot be used by reason of that defect.

19.10.2 Replaced Products shall carry a warranty on the same terms as set out in Clause 19.10 equal to the unexpired period of the original warranty or 12 Months, whichever is longer. Re-performed Services shall carry a warranty on the same terms as set out in Clause 19.10 equal to the unexpired period of the original warranty or 3 Months, whichever is longer.

[ * ]

19.11 The warranties and remedies set forth in this Clause 19 shall be without prejudice to VGC’s other rights and remedies under the CoA or provided by law or in equity.

20.	ISSUED PROPERTY

20.1.

Issued Property, if any, shall remain the property of VGC and shall be used only for the purposes of the CoA and for no other purpose whatsoever without the prior written consent of VGC. SGC shall at its own expense be responsible for the safe custody of Issued Property.

20.2.

Issued Property shall be returned to VGC in good condition at SGC's expense on termination of the CoA, any relevant Purchase Order (however terminated) or on earlier written demand. Furthermore:

20.2.1.

SGC shall comply with VGC's reasonable directions for the return of Issued Property and shall not claim any lien over Issued Property.

20.2.2.

Carriage of Issued Property shall be at VGC's direction and shall not be subject to any handling charge by SGC.

SGC undertakes to promptly enter into a source code escrow agreement for the Software with VGC or VGSL, as specified by VGC, substantially in the form of the Escrow Agreement. Unless otherwise agreed, SGC will enter into the Source Code Escrow Agreement no later than thirty (30) days after the Effective Date of the CoA.

21.	SOURCE CODE ESCROW

21.1.

21.2.

SGC additionally undertakes to procure that the Escrow Agent (as defined in the Escrow Agreement) executes the Escrow Agreement.

22.	DATA PROTECTION AND LAW ENFORCEMENT

22.1

SGC shall during the term of this CoA comply with all applicable laws, regulations, regulatory requirements and codes of practice in connection with its processing of personal information pursuant to this CoA, including without limitation, by complying with the Data Protection Directive (together, the "Data Protection Laws") applicable to a controller of that personal information and shall not do, or cause or permit to be done, anything which may cause or otherwise result in a breach by VGC of the same.

22.2	SGC agrees that where the provision of any Services under a Purchase Order will result in the processing of any personal information by SGC on behalf of VGC, SGC shall:

24.2.1

enter into a data processing contract with VGC in the form of that attached as Schedule 8 (Data Processing Agreement) prior to the commencement of any processing of such personal data; and

24.2.2

process all VGC personal data only pursuant to and in accordance with such processing contact.

22.3

SGC shall be liable for and shall indemnify VGC and hold VGC harmless against any and all claims, actions, liabilities, losses, damages and expenses (including legal expenses) incurred by VGC which arise directly or indirectly out of or in connection with SGC’s breach of its obligations pursuant to Clauses 22.1 and 22.2, including without limitation those arising out of any third party demand, claim or action, or any breach of contract, negligence, fraud, wilful misconduct, breach of statutory duty or non-compliance with any part of the Data Protection Laws by SGC or SGC’s personnel.

22.4

For the purposes of Clauses 22.1 to 22.3, the term “Data Protection Directive” shall mean Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (Official Journal L 281, 23/11/1995 P. 0031 – 0050), “controller”, “personal data” and “processing” shall have the meanings ascribed to these terms in the Data Protection Directive, and the term

“personal information” shall mean personal data and any information identifying, directly or indirectly, a VGC’s customers, users or employees, including their mobile number, MSISDN or IMSI, and information that could reasonably be related to such identifying information.

22.5

SGC agrees and acknowledges that VGC may be legally required to provide assistance to Law Enforcement Authorities in respect of the detection, investigation, prosecution or prevention of crime, including the carrying out of lawful interception and complying with disclosure obligations. Accordingly, SGC agrees that it shall provide the following assistance to VGC and each relevant Vodafone Group Company:

22.5.1

implement and maintain such interception capability in accordance with VGC’s requirements where VGC is obliged by Applicable Law to ensure or procure that such capability is implemented and maintained;

22.5.2

implement and maintain such data retention capability in accordance with VGC’s requirements where VGC is obliged by Applicable Law, to ensure or procure that such capability is implemented and maintained;

22.5.3

retain such data on the use of the Services by VGC’s customers (including without limitation data referring to the routing, duration, time or volume of a communication, the protocol used, the location of the terminal equipment of the sender or recipient, the network on which a communication originates or terminates and the beginning, end or duration of a connection) as VGC may require in order to comply with Applicable Laws regarding the retention or preservation of data;

22.5.4

implement and maintain such customer identification procedures in accordance with VGC’s requirements where VGC is obliged by Applicable Law to ensure or procure that such procedures are implemented and maintained; and

22.5.5

provide such other assistance as is necessary to enable VGC to comply with requests for assistance from Law Enforcement Authorities, under Applicable Law, including (but not limited to) the carrying out of interception of communications and the performance of disclosure obligations.

22.6

In respect of any assistance provided by SGC pursuant to Clause 22.5.5, SGC agrees to ensure that any requests for assistance from Law Enforcement Authorities, and the details of any assistance provided and all information connected with such requests is treated with the highest level of confidentiality and secrecy. In particular, it shall procure that:

22.6.1

only nominated individuals who are permanent employees of SGC and who are notified and agreed in advance with VGC

are made aware of such requests and information connected with such requests;

22.6.2

such nominated individuals are legally bound by, and notified of, confidentiality and secrecy obligations in respect of all information concerning law enforcement assistance, including (without limitation) surveillance targets, frequency of requests or the details of any information provided; and

22.6.3

any information acquired in the course of assisting with such requests shall be used solely upon VGC’s instructions and solely for the purpose of providing assistance under Clause 22.5.1.

22.7

In respect of any data retained in accordance with Clause 22.5.3, SGC agrees that such data is the confidential and proprietary information of VGC and shall be processed in accordance with Clauses 22.1 to 22.4.

22.8

In the event that SGC receives a request for assistance from a Law Enforcement Authority in respect of Services provided pursuant to this CoA, other than pursuant to Clause 22.5 in respect of which it is legally bound to provide such assistance, SGC shall, to the extent permitted by law, inform VGC of such request and provide such details as VGC may require.

22.9

In Clauses 22.5 to 22.8 the term “Applicable Law” means the relevant law applicable to VGC and/or each Vodafone Group Company and “Law Enforcement Authority” means any law enforcement authority, governmental agency or other authority responsible for safeguarding national security, defence, or the prevention, investigation, detection and prosecution of crime, which has jurisdiction in the relevant territory.

22.10

The VGC shall reimburse any reasonable costs of SGC where SGC can demonstrate that the requirements under Clause 22.5 require SGC to bear either capital or operating costs over and above those costs SGC would, but for the specific requirements of Clause 22.5, have been likely to incur.

23.	TERMINATION, CANCELLATION AND POSTPONEMENT

23.1.

Either Party (in this paragraph the "terminating Party") shall be entitled to terminate a CoA, a Purchase Order, in whole or in part, as applicable, with immediate effect by giving written notice to the other Party (in this paragraph the "breaching Party") at any time if:

23.1.1.

the breaching Party breaches any other material provision of the CoA, Purchase Order and (in the case of a breach capable of remedy) fails to remedy the breach within thirty (30) days after receiving written notice from the terminating Party requiring it to do so; or

the breaching Party becomes subject to an Insolvency Event; or

23.1.2.

23.1.3.

the breaching Party (in the case of SGC) ceases to be a Supplier Group Company or (in the case of VGC) or ceases to be a Vodafone Group Company or Partner Network (in the case of VGC); or

23.1.4.

anevent detailed in Clause A29 (Force Majeure) gives rise to a right to terminate as described in Clause A29.

23.2.

VGC shall be entitled to terminate the CoA, a Purchase Order, in whole or in part, as applicable, with immediate effect and without liability to SGC at any time if there is a Change in Control of SGC where “Control” means, in relation to a body corporate, the power of a person to secure that its affairs are conducted in accordance with the wishes of that person:

23.2.1.

by means of the holding of shares or the possession of voting power in or in relation to that or any other body corporate; or

23.2.2.

by virtue of any powers conferred by the articles of association or any other document regulating that or any other body corporate,

and a "Change in Control" shall occur if a person who controls any company or undertaking ceases to do so, or if another person acquires control of it.

23.3.

VGC may terminate this CoA upon (12) Months’ notice in writing to SGC at any time during the Term, such notice to take effect on or after the 1st anniversary of the Effective Date.

23.4.

VGC shall have the right, without additional cost, to cancel a part or all of the Products and Services in a Purchase Order by giving written notice to SGC at any time up to ten (10) Business Days before the Delivery Date or under the circumstances otherwise specified in the CoA.

23.5.

SGC shall, within twenty (20) Business Days of receiving written notice from Vodafone Group Services Limited or Supplier (whichever is earlier) informing it that either

23.5.1.

VGC is no longer a Vodafone Group Company; or

23.5.2.

where VGC is a Partner Network, VGC has ceased to be a Partner Network

terminate the CoA with immediate effect by giving written notice to VGC. For the avoidance of doubt nothing in this Clause [23.5] shall preclude SGC from supplying the said former VGC in the future.

24.	EFFECT OF TERMINATION

24.1.

On termination of a CoA:

24.1.1.

all materials of either a Party in the control of possession of the other Party that contain or bear the other Party’s Intellectual Property Rights or Confidential Information shall be destroyed or at the request of such Party returned to that Party; and

24.1.2.

any Licenses granted to VGC pursuant to the CoA shall survive such termination, subject to payment in full for such Licenses; and

24.1.3.

all other rights and obligations of the Parties under the CoA shall automatically terminate save for such rights and obligations as shall have accrued prior to such termination and any rights or obligations which expressly or by implication are intended to come into or continue in force on or after such termination pursuant to Clause A45 (Survival).

24.2.

Cancellation or Termination of a Purchase Order

24.2.1.

On the cancellation or termination, with or without cause, of a Purchase Order by VGC all rights and obligations of the Parties under such Purchase Order shall automatically terminate save for such rights and obligations as shall have accrued prior to such cancellation or termination and any rights or obligations which expressly or by implication are intended to come into or continue in force on or after such cancellation or termination pursuant to Clause A45 (Survival).

24.2.2.

On receipt of a notice of cancellation or termination, in whole or part, of a Purchase Order SGC shall cease production and other preparations or work in relation to the subject matter of that notice. In full settlement and provided cancellation or termination is without cause, VGC shall pay the direct costs incurred by SGC and agreed by VGC that are the direct result of VGC’s cancellation or termination of the Purchase Order not to exceed the amount of the

cancelled or terminated Products and Services in the Purchase Order cancelled or terminated. For the purposes of this Clause, SGC shall be allowed to seek reimbursement from VGC for Services actually performed at the rate previously agreed between VGC and SGC. In claiming any costs, SGC shall demonstrate to VGC’s reasonable satisfaction that the Products and Services cannot be used in fulfilling SGC’s obligations under other Purchase Orders issued by VGC or reasonably anticipated to be issued by VGC . SGC agrees to take all reasonable steps in order to minimize the costs associated with any cancellation or termination of a Purchase Order.

24.2.3.

Termination of any Purchase Order with cause under Clauses 23.1.1 or 23.1.2 [as set out in this Clause 24.2 shall entitle VGC

24.2.3.1

to seek such damages as it shall be entitled under law.

24.2.3.2 to terminate any directly associated Purchase Order; and

24.3.

24.2.3.2 Provided that VGC gives SGC written notice of a material breach of the agreement and SGC is unable to cure such breach within 90 days of notification, VGC shall be entitled to recover from SGC any losses it may suffer together with any additional expenditure incurred by VGC in obtaining work or products in replacement of the Services and Products to be provided by SGC hereunder. with cause under Clauses 23.1.1 or 23.1.2

24.4.

Disengagement Services

24.4.1.

In the event of a termination or cancellation of certain Services where VGC reasonably requires that there be a staged transition of the Services to a third party supplier, SGC shall continue to supply such Services as requested by VGC and in accordance with the following (hereinafter referred to as the “Disengagement Services”):

24.4.2.

Disengagement Services will be provided for a period of twelve (12) Months unless a shorter period is requested by VGC;

24.4.3.

Disengagement Services will be provided on the same terms and conditions as the Services which they replace unless VGC requests a modified

scope of Services, in which case the Parties will agree on the Price and other terms and conditions; and

24.4.4.

If requested by VGC, and at the cost of VGC, such cost to be agreed between the Parties, SGC shall prepare and VGC shall approve a disengagement plan, which shall include a detailed description of all Disengagement Services and handover of risk and responsibility.

25.	LICENCES FOR SOFTWARE AND DOCUMENTATION

25.1.

Upon delivery of Standard Software or Documentation to VGC, SGC shall grant (or procure the grant) to VGC of a license to use, copy and distribute Standard Software and any related Documentation in the course of its business and for purposes reasonably incidental thereto, on the following terms (the “Licence”):

25.1.1.

non-exclusive and transferable to another VGC without additional charge or SGC consent;

25.1.2.

royalty-free (except as otherwise set out in Schedule 4 (Global Price Book); and

25.1.3.

irrevocable, subject to the termination provisions in Clause A23 (Termination, Cancellation and Postponement).

25.2.

The right to use Standard Software shall include any act that is reasonably incidental to such use, including the maintenance of a reasonable number of back-up or test copies of such Software (including for disaster recovery purposes).

25.3.

VGC shall be entitled to release and sub-license Standard Software to any of VGC’s sub-contractors, Outsourcers, suppliers, distributors, subscribers or other persons in the course of VGC’s business and for purposes reasonably incidental thereto, provided that such sub-contractors, Outsourcers, suppliers, distributors, subscribers or other persons shall be obligated to comply with the terms of this Agreement as if they were the VGC and that VGC shall be responsible for such compliance.

25.4.

At no additional charge, VGC may transfer Standard Software to a new platform and may transfer Standard Software to any other Vodafone Group Company or Partner Network that has entered into a CoA.

25.5.

The use of Standard Software shall be restricted to the use of such Software in object code form (and after the occurrence of a “Release Event”, as such term is defined in the Source Code Escrow Agreement, in source code form).

VGC shall not have the right to adapt, reverse engineer, decompile, disassemble or modify Standard Software in whole or in part except:

25.6.

25.6.1.

as permitted by applicable law;

25.6.2.

in the event of the occurrence of a “Release Event”; or

25.6.3.

to the extent that such action is legitimately required for the purposes of integrating the operation of Standard Software with the operation of other software or systems used by VGC, in circumstances where SGC is not able or prepared to carry out such action at a reasonable commercial fee.

25.7.

Licences for Non-Production Systems

25.7.1.

SGC shall grant to VGC a Licence for any development and testing in non-production systems including test and reference systems (“Licences for Non-Production Systems”) at no additional charge.

25.7.2.

The Licence for Non-Production Systems shall be a non-exclusive, non-transferable licence to use Standard Software.

25.7.3.

Any Licence for Non-Production Systems is granted only for purposes of developing, prototyping and testing VGC applications that operate with Standard Software, and not for any other purpose.

25.7.4.

Upon termination of the License for Non-Production Systems, VGC shall promptly return to SGC (or destroy at VGC’s option) all existing copies of Standard Software used for Non-Production Systems.

25.8.

SGC shall provide to VGC Third Party Standard Software on the same terms as other Standard Software unless VGC requires otherwise.

25.9.

SGC and its suppliers shall retain all title, copyright and other proprietary rights in the Standard Software. VGC does not acquire any rights, express or implied, in the Standard Software, other than those specified in this Agreement. VGC agrees that it will not publish externally any results of benchmark tests run on the Standard Software.

Subject to Clause 26.2, all Intellectual Property Rights in the Standard Software shall remain vested in SGC or its licensors and nothing in the CoA shall operate to assign any rights, title or interest in such Intellectual Property Rights to VGC (save as otherwise provided in the CoA).

26.	INTELLECTUAL PROPERTY RIGHTS

26.1.

26.2.

All Intellectual Property Rights in any Requirement Specifications and any other material, documents and information provided by or on behalf of VGC to SGC under the CoA shall remain vested in VGC and nothing in the CoA, any Purchase Order or Work Order shall operate to assign any rights, title or interest in such Intellectual Property Rights to SGC.

27.	INTELLECTUAL PROPERTY RIGHTS INDEMNITY

27.1.

SGC shall fully indemnify and hold harmless each Indemnified Party against any Claims incurred or sustained by any or all of the Indemnified Parties as a result of or in connection with any claim or action made or brought by any person alleging that the supply, use, disposal, importation or possession of any Product, Service or any part of them infringes the rights (including Intellectual Property Rights) of any person.

27.2.

Without limiting Clause 27.1, where any Claim causes VGC’s quiet enjoyment of any Product, Service or any part thereof to be disrupted or impaired, SGC shall at its own cost and expense and at its option:

27.2.1.

procure for the benefit of VGC the right to continue to use and exploit the Product and Service in accordance with the CoA without disruption or impairment; or

27.2.2.

modify the infringing Product or Service so that it becomes non-infringing provided that whenever practicable such modifications are in accordance with the specifications agreed between SGC and VGC and are made within a reasonable time; or

27.2.3.

if the foregoing alternatives are not available on commercially reasonable terms, cancel all outstanding Purchase Orders for such Product or Service that is subject to the Claim and have any infringing Products in VGC’s inventory returned to SGC at SGC’s expense; SGC shall repay to VGC the full Price paid by VGC for any affected Product or Service, plus VAT, that is returned or is, in VGC’s opinion, not useable by VGC.

28.	INDEMNIFICATION PROCEDURES

28.1.

If a Claim is brought by a third party against VGC, its officers, directors, employees, agents, contractors, successors or assigns (each an

“Indemnified Party”) in respect of which indemnification is provided by SGC hereunder (each, an “Indemnified Third Party Claim”), VGC shall:

28.1.1.

promptly notify SGC thereof and subject to VGC being reasonably satisfied at all times with SGC’s conduct of the defence to such Claim, VGC shall:

28.1.1.1.

allow SGC to control the defence of such Claim; and

28.1.1.2.

at the request and expense of SGC, provide SGC with reasonable assistance for the purpose of SGC defending any such Claim, provided always that SGC shall not admit or settle any such Claim without the prior written consent of each of the Indemnified Parties.

28.2.

If SGC assumes the defence of an Indemnified Third Party Claim, SGC shall:

28.2.1.

promptly and in any event within a period of 10 Business Days from VGC’s notification as set out in Clause 28.1, notify each of the Indemnified Parties that it has assumed such defence;

28.2.2.

at all times have regard for the interests and reputation of VGC and each of the Indemnified Parties;

28.2.3.

consult and keep each Indemnified Party informed, in relation to any negotiations, settlement or litigation; and

28.2.4.

not, without the prior written consent of VGC and each Indemnified Party, enter into any settlement or compromise of the Indemnified Third Party Claim that involves a remedy other than the payment of money by SGC.

28.3.

If SGC does not assume the defence of an Indemnified Third Party Claim in accordance with Clause 28.2.1, VGC may defend the Indemnified Third Party Claim in such manner as it may deem appropriate, and SGC shall indemnify VGC in relation to such Claim.

28.4.

Failure by VGC to comply with the indemnification procedures in this Clause 28 does not relieve SGC of any obligation to indemnify an Indemnified Party in respect of any Indemnified Third Party Claim.

Neither SGC nor VGC shall be liable for any delay in performing any of its obligations under the CoA, Purchase Order if such delay is caused by a Force Majeure. The Party affected by the Force Majeure shall be entitled (subject to giving the other Party full written particulars of the circumstances in question and to using reasonable endeavours to resume full performance without avoidable delay) to a reasonable extension of time for the performance of such obligations.

29.	FORCE MAJEURE

29.1.

29.2.

Notwithstanding the foregoing, neither Party shall be entitled to claim Force Majeure in the following cases:

29.2.1.

any actions or circumstances caused by the respective Party's fault or negligence;

29.2.2.

shortage or price increase of labour, materials or utilities;

29.2.3.

delays by a Party’s sub-contractor unless the subcontractor’s delay is in itself caused by a Force Majeure;

29.2.4.

the failure of SGC or third parties to develop technology that is necessary to supply, test or use the Products.

29.3.

VGC may terminate the CoA or may terminate, in whole or in part, a Purchase Order affected by the Force Majeure by notice to SGC if the Force Majeure affecting SGC continues for thirty (30) consecutive days. SGC may terminate the CoA or may terminate, in whole or in part, a Purchase Order affected by the Force Majeure by notice to VGC if any Force Majeure affecting VGC continues for three (3) Months.

30.	CORPORATE SOCIAL RESPONSIBILITY

SGC shall comply and shall procure that its third party suppliers comply with the Vodafone Code of Ethical Purchasing as set out in Schedule 6 (Corporate Social Responsibility) as may be amended by VGC and notified to SGC from time to time.

31.	CONFIDENTIALITY

31.1.

In respect of any Confidential Information disclosed, furnished or made accessible by either Party (in this Clause 31, the "disclosing Party") to the other Party (in this Clause 31, the "receiving Party"), the receiving Party undertakes to the disclosing Party:

31.1.1.

to keep confidential all Confidential Information disclosed by the disclosing Party;

to keep Confidential Information disclosed by the disclosing Party in a safe and secure place using reasonable technical and organisational security measures to prevent unauthorised access, destruction or loss;

31.1.2.

31.1.3.

not, without the prior written consent of the disclosing Party, to disclose Confidential Information disclosed by the disclosing Party in whole or in part to any other person save those of its employees, agents, advisers or sub-contractors who are involved in performing its obligations under the CoA and who need to know the Confidential Information in question for that purpose; and

31.1.4.

to use the Confidential Information disclosed by the disclosing Party solely in connection with performing its obligations under the CoA and not for its own benefit or the benefit of any third party.

31.2.

Each Party hereby undertakes to the other to make all relevant employees, agents, advisers and sub-contractors aware of the confidential nature of the Confidential Information disclosed by the disclosing Party and the provisions of this Clause 31 and, without limitation to this Clause 31, to take all such steps as shall from time to time be necessary to ensure compliance by its employees, agents, advisers and sub-contractors with the provisions of this Clause 31.

31.3.

The provisions of Clauses 31.1 and 31.2 shall not apply to any information which:

31.3.1.

is or becomes public knowledge other than by breach of this Clause 31;

31.3.2.

is in the possession of the receiving Party without restriction in relation to disclosure before the date of receipt from the disclosing Party;

31.3.3.

is received from a third party who lawfully acquired it and who is under no obligation restricting its disclosure; or

31.3.4.

is independently developed without access to any Confidential Information disclosed by the disclosing Party.

31.4.

The provisions of Clauses 31.1 and 31.2 shall not apply so as to prevent disclosure of Confidential Information by the receiving Party where and to the extent that such disclosure is required to be made:

by virtue of the regulations of the London Stock Exchange or New York Stock Exchange;

31.4.1.

31.4.2.

by any court or governmental or administrative authority competent to require the same; or

31.4.3.

by any applicable law, legislation or regulation.

31.5.

Nothing in this Clause 31 shall be deemed or construed to prevent VGC from disclosing any Confidential Information obtained from Supplier to Vodafone Group Plc, any other Vodafone Group Company or any Partner Network designated by VGSL, provided that VGC shall ensure that the relevant Vodafone Group Company observe confidentiality undertakings on substantially the same terms contained as in this Clause 31.

32.	ASSIGNMENT AND SUBCONTRACTING

32.1.

SGC shall not sub-contract any of its obligations under this CoA, any Purchase Order or any part of any of them without the previous consent in writing of VGC (such consent not to be unreasonably withheld or delayed). Notwithstanding the foregoing, SGC shall be liable for the acts and omissions of any sub-contractor or third party supplier and shall remain solely liable to VGC for the performance of SGC’s obligations under this CoA.

32.2.

SGC shall not assign, novate, transfer or otherwise dispose of or deal with this CoA, any Purchase Order, as applicable, or any part of any of them without the previous consent in writing of VGC, which may be withheld at VGC's sole discretion.

32.3.

VGC shall be entitled to assign, novate, transfer, sub-contract or otherwise dispose of or deal with any or all of its rights or obligations under the CoA or any Purchase Order to any Vodafone Group Company.

33.	CHANGE CONTROL PROCEDURE

33.1.

Any proposed change to the terms of any Purchase Order or Work Order (each, a “Change”) shall be subject to the Change Control Procedure.

33.2.

Neither VGC nor SGC shall be bound by any Change unless and until it is agreed in writing and signed by both Parties.

34.	RIGHTS OF THIRD PARTIES

Except in the case of any permitted assignment pursuant to this CoA, this CoA and any Purchase Order are made solely and specifically between and for the benefit of the Parties and are not intended to be for the benefit of and shall not be enforceable by any person who is not named at the date of this CoA as a Party to it, and neither Party may declare itself a trustee of the rights under it for the benefit of any third party.

Subject to Clause 31 (Confidentiality), SGC shall not, and shall procure that its employees, agents, advisers and sub-contractors shall not, make any announcement, or comment upon, or originate any publicity or press release or otherwise provide any information to any third party concerning this CoA and any Purchase Order or the matters contained in either of them without the prior written consent of VGC's duly authorised representative.

35.

PUBLICITY

35.1.

35.2.

SGC shall not identify VGC or any other Vodafone Group Company or any of its or their affiliated persons in any promotional, advertising or other materials to be disseminated to the public or any third party or use any of the Vodafone Marks therein without the prior written consent of VGC.

36.	NOTICES AND E-MAIL

36.1.

All notices and other communications to be given under or in connection with this CoA and any Purchase Order shall be made in writing in English and shall be deemed to have been duly given: when delivered, if delivered by messenger during normal business hours on a normal business day of the recipient; when sent, if transmitted by facsimile transmission (receipt confirmed and with a confirmation copy sent by post) during normal business hours on a normal business day of the recipient; or on the fifth Business Day following posting, if posted by international first class or recorded post postage pre-paid, in each case addressed at such address as set forth in the CoA or to such other addresses as the Parties may from time to time notify pursuant to this Clause.

36.2.

Routine communications relating to the performance of this CoA may be conducted by electronic mail. However, the Parties agree that any communication by electronic mail shall not amount to notice in writing for the purposes of Clause 36.1 or to a written instrument for the purposes of Clause A42 (Variation) and that any purported notice under, or variation of, this CoA by electronic mail shall have no effect.

37.	ESCALATION

37.1.

In the event of a dispute or difference between VGC and SGC arising out of or in connection with this CoA, either Party may call an extraordinary meeting of the Parties for the purpose of resolving such dispute or difference by service of not less than five (5) Business Days' written notice and each Party agrees to procure that its designated representative(s) from its management team shall attend all extraordinary meetings called in accordance with this Clause 37.

37.2.

The members of the relevant meeting in Clause 37.1 above shall endeavour in good faith to resolve disputes arising out of this CoA. If any dispute referred to a meeting is not resolved at that meeting then either

Party, by notice in writing to the other, may refer the dispute to designated senior officers who shall co-operate in good faith to resolve the dispute as amicably as possible within fourteen (14) Business Days of service of such notice. If such senior officers fail to resolve the dispute in the allotted time, then this dispute resolution procedure shall be deemed exhausted.

37.3.

The above provisions shall be without prejudice to either Party’s other rights and remedies under the CoA or provided by law or in equity, including the right to seek injunctive relief or otherwise commence legal proceedings at any time.

37.4.

VGC or SGC may request that an issue escalated under the CoA is also escalated to VGSL and Supplier if the issue affects more than one Vodafone Group Company or Supplier Group Company.

38.	GOVERNING LAW

38.1.

This CoA (including for the avoidance of doubt each Purchase Order and Work Order) shall be governed by and construed in accordance with the laws of England and Wales.

38.2.

Each Party irrevocably submits to the exclusive jurisdiction of the courts of England and Wales over any claim, dispute or difference arising under or in connection with this CoA.

39.	ENTIRE AGREEMENT

The CoA (including for the avoidance of doubt each Purchase Order and Work Order) represent the entire understanding between the Parties in relation to its subject matter and supersedes all agreements and representations made by either Party, whether oral or written, in relation to the subject matter of the CoA. This Clause 39 shall not affect either Party’s liability for fraud.

40.

WAIVER

40.1.

A waiver by a Party of a breach or a default under this CoA does not constitute a waiver of any other breach or default and shall not affect any other terms and conditions.

40.2.

The rights and remedies provided by these terms and conditions are cumulative and (except as otherwise provided in the CoA) are not exclusive of any rights or remedies provided by law.

40.3.

The failure to exercise or delay in exercising a right or remedy provided by this CoA or by law does not constitute a waiver of such right or remedy or a waiver of other rights or remedies.

40.4.

A waiver of a breach of any of these terms and conditions or of a default under this CoA will not prevent a Party from subsequently requiring compliance with the waived obligation at a later time.

If any part of this CoA, any Purchase Order is held to be void, voidable, illegal or unenforceable, the validity or enforceability of the remainder of this CoA, Purchase Order shall not be affected. In such a case, the Parties shall endeavour to negotiate a substitute provision together with other relevant provisions that best reflects the economic intentions of the Parties whilst being enforceable, and shall execute all agreements and documents required in this connection.

41.	SEVERABILITY

42.

VARIATION

This CoA, any Purchase Order shall be capable of being varied only by a written instrument signed by hand in ink by a duly authorised officer or other authorised representative of each of the Parties.

43.	NO PARTNERSHIP/AGENCY

Nothing in this CoA nor in any Purchase Order is intended to or shall operate to create a partnership or joint venture of any kind between the Parties, or to authorise either Party to act as agent for the other, and neither Party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way (including but not limited to the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).

44.	HEALTH AND SAFETY

44.1.

SGC agrees to observe, and procure that all its employees and agents or those of any its sub-contractors given access to any relevant premises of VGC comply with, the provisions of any applicable laws and regulations, including health and safety legislation, and with VGC’s health and safety policies as notified by VGC to SGC.

44.2.

SGC shall indemnify and hold harmless VGC, its officers, employees, agents, successors and assigns in respect of any Claims made or brought against it by any person for death or personal injury arising from any act or omission by SGC.

45.

SURVIVAL

45.1.

Any termination of this CoA, any Purchase Order for any reason shall be without prejudice to VGC’s other rights and remedies under the CoA or provided by law or in equity. Any such termination shall not affect any accrued rights or liabilities of either Party nor the coming into force or the continuance in force of any provision of this CoA, or of a Purchase Order which is expressly or by implication intended to come into or continue in force on or after such termination including AClauses [ ] (Definitions), [ ] (Special Conditions), [ ] (Warranties), [ ] (Intellectual Property Rights), [ ] (Intellectual Property Rights Indemnity), [ ] Indemnification Procedures, [ ] (Confidentiality), [ ] (Rights of Third Parties), [ ] (Publicity), [ ] (Governing Law), [ ] (Entire Agreement), [ ] (Waiver), [ ]

(Severability), [ ] (Survival), [ ] (Insurance), [ ] (Further Assurance), [ ] (Audits), [ ] (Limitation of Liability), [ ] (Inadequacy of Damages), [ ] (Interpretation) and [ ] (Order of Precedence).

46.

INSURANCE

46.1.

SGC shall insure against all risks and liabilities to which SGC is subject under this CoA and as is prudent in the circumstances, including loss or damage whether caused by negligence, insolvency, fraud or otherwise by any of SGC, its agents, employees or sub-contractors. SGC shall notify its insurers in writing of all insurance claims as soon as reasonably practicable after the relevant loss or damage.

46.2.

Without prejudice to Clause 46.1 above, SGC agrees that it shall effect and maintain in force with a reputable insurance company at least the following insurance policies in the following amounts:

46.2.1.

Public and Product Liability Insurance Policy in respect of loss or injury to persons or damage to tangible property with a limit of not less than five million pounds sterling (£5,000,000) per claim;

46.2.2.

Professional Indemnity (errors and omissions) Insurance Policy in respect of its undertakings and obligations under this CoA with a limit of not less than five million pounds sterling (£5,000,000) per claim; and

46.2.3.

such other insurances required by law (including, without limitation, Motor and Employers Liability) with a limit in each case of not less than five million pounds sterling (£5,000,000) per claim or such other greater amounts as required by law.

46.3.

SGC shall ensure that the appropriate noting of VGC’s interests have been recorded on the policies or a generic interest clause has been included together with a waiver of subrogation and any right of contribution in favour of VGC and shall on the written request of VGC from time to time provide a certificate signed by SGC’s insurer or such insurer’s appointed agents confirming that SGC is insured in accordance with this Clause 46 in a form satisfactory to VGC. On the renewal of each policy, SGC shall promptly send a copy of the premium receipt to VGC.

46.4.

SGC shall, during the Term, and for a period of six (6) years thereafter:

46.4.1.

administer the insurance policies and SGC's relationship with its insurers in accordance with good industry practice and at all times to preserve the benefits for VGC set out in this CoA;

do nothing to invalidate any such insurance policy or to prejudice VGC’s entitlement thereunder; and

46.4.2.

46.4.3.

procure that the terms of such policies shall not be altered in such a way as to diminish the benefit to VGC of the policies as provided at the date of this CoA without VGC’s prior written consent.

46.5.

SGC shall give immediate notice to VGC and any other insured parties in the event of a cancellation or variation in the terms of cover or any material adverse change in SGC’s insurance arrangements that may affect VGC or any other insured party’s interest.

47.	FURTHER ASSURANCE

SGC shall use all reasonable endeavours to do or procure to be done all such further acts and things and execute or procure the execution of all such other documents as VGC may from time to time reasonably require for the purpose of giving VGC the full benefit of the provisions of this CoA.

48.

AUDIT

48.1.

SGC shall keep or cause to be kept full and accurate records (in this Clause, the "Records") of all processes, personnel, equipment and premises used in performing its obligations in connection with this CoA and each Purchase Order for a period of six (6) years, except where the retention of such records would be in breach of any applicable legal or regulatory restrictions.

48.2.

SGC shall grant to VGC, any auditors of VGC and their respective authorised agents the right of reasonable access to the records (including a right to make copies thereof at cost), any equipment or premises and shall provide all reasonable assistance at all times during the currency of this CoA for the purposes of carrying out an audit of SGC’s compliance with the CoA as well as an audit of all activities, performance, security and integrity in connection therewith. SGC shall be repaid any reasonable expenses incurred in giving any such reasonable assistance pursuant to this Clause.

48.3.

SGC may request that VGC’s independent, external auditors conduct an audit and that an officer of said firm provide a signed certificate verifying that the Software Products and Services are being used pursuant to the provisions of this Agreement. In the event that said firm does not provide such a certification, then SGC may conduct the audit itself, observing a reasonable notice period to VGC. Any such audit shall be conducted during regular business hours at VGC's facilities and shall not unreasonably interfere with VGC's business activities. SGC agrees that its personnel will comply with VGC's reasonable security and confidentiality requirements during the audit. If an audit reveals that VGC has underpaid fees to SGC, VGC shall be invoiced directly for such

underpaid fees. If the underpaid fees are in excess of five percent (5%) of the aggregate license fees paid to SGC, then VGC shall pay SGC’s reasonable costs of conducting the audit.

49.	LIMITATION OF LIABILITY

49.1.

Except as set forth in Clause 49.3, the maximum liability of either Party to the other excluding any liquidated damages paid or payable under or in connection with the CoA , whether based on contract, tort, negligence or otherwise shall be limited to:

49.1.1.

£10 million in any period of twelve (12) Months, such period to commence in each case on the date of the incident, or the first or the series of incidents, giving rise to the Claim in question; or

49.1.2.

the aggregate face value of all Purchase Orders placed by VGC during the twelve (12) Months preceding the incident or first in a series of incidents, giving rise to the Claim in question.

whichever is the greater.

49.2.

Except as set forth in Clauses 49.3, neither Party shall be liable for any indirect or consequential damages or losses, including loss of profits and loss of data where such damages or losses are determined to be an indirect or consequential damage or loss.

49.3.

Nothing in the CoA excludes or limits liability for Claims with respect to the following:

49.3.1.

SGC’s liability under any relevant product liability legislation (e.g. General Product Safety Directive 2001/95/EC);

49.3.2.

SGC’s liability for death or personal injury resulting from the supply or use of the Products or Services;

49.3.3.

a Party’s liability under Clauses [A] (Data Protection and Law Enforcement), 25 (Licenses for Software and Documentation), [A] (Intellectual Property Rights Indemnity) and [A] (Confidentiality);

49.3.4.

SGC’s liability for physical damage to VGC’s property;

49.3.5.

a Party’s liability for fraudulent misrepresentation or for death or personal injury resulting from its negligence; and

49.3.6.

any other liability to the extent that such liability may not be excluded or restricted by law.

Without prejudice to Clause 31 (Confidentiality) or to any other rights or remedies that VGC may have, SGC acknowledges and agrees that damages alone would not be an adequate remedy for breach by SGC of the provisions of this CoA, a Purchase Order and that accordingly VGC shall be entitled, without proof of special damages, to the remedies of injunction, specific performance or other equitable relief for any threatened or actual breach of the provisions of this CoA, a Purchase Order.

50.	INADEQUACY OF DAMAGES

51.	INTERPRETATION

In this CoA (except where the context otherwise requires):

51.1.

the Schedules (as amended from time to time) shall form part of this CoA and shall be construed and shall have the same force and effect as if they were expressly set out in the main body of this CoA and any reference to this CoA includes the Schedules;

51.2.

references in this CoA to a Schedule shall be deemed to be a reference to the current version of the relevant Schedule to this CoA;

51.3.

the index and headings in this CoA are for ease of reference only and shall not constitute a part of this CoA for any purpose or affect its interpretation;

51.4.

use of the singular includes the plural and vice versa;

51.5.

use of any gender includes the other genders;

51.6.

51.7.

52.	ORDER OF PRECEDENCE

In the event of any inconsistency between the CoA, its Schedules and any Purchase Order, the documents shall prevail in the following order of precedence (highest level of precedence first, lowest last):

52.1.

Body of the CoA;

52.2.

Schedule 1 (Special Conditions);

52.3.

Schedule 2 (GTCs);

All other Global Attachments;

52.4.

52.5.

Local Attachments; and

52.6.

Purchase Orders.

53.	COUNTERPARTS

This CoA may be executed in any number of counterparts, each of which, when executed and delivered, shall be an original, and all the counterparts together shall constitute one and the same instrument.

GLOBAL PRODUCTS AND SERVICES

SCHEDULE 3

[Note: To be used to describe Product requirements, such as Specifications, Acceptance Testing etc.]

AExample

Part 1 - Brief description of the Products and Services

Chordiant Decision Management Suite (by part and version number):

·	Chordiant Predictive Analytics Director; 6100-6.0.2

·	Chordiant Strategy Director; 6101-6.0.2

·	Chordiant Decision Monitor; 6104-6.0.2

·	Chordiant Real-Time Decisioning Services; 6102-6.0.2

·	Chordiant Database Decisioning Services; 6103-6.0.2

·	Chordiant Recommendation Advisor; 6108-6.0.3

·	Chordiant Adaptive Decisioning Services; 6106-6.0.2

·	Chordiant Data Preparation Director; 6105-6.0.2

·	Chordiant Real-Time Proposition Monitoring; 6111-6.0.2

·	Chordiant Interaction Services - 6107-6.0.2

·	Chordiant Campaign Management Decisioning Service - 6109-6.0.2

2.	Chordiant Marketing Director Suite:

·	Chordiant Marketing Director: 6.2.0.3

·	Chordiant Online Marketing Director; 6.2.0.3

·	Chordiant Mobile Marketing Director; 6.2.0.3

The Standard Software listed above shall be deemed accepted upon delivery.

Part 2 - Specification for the Products and Services

Documentation as annexed to the GFA at Annex 3.

Confidential 42 of 125

Confidential Page 43 of 125

[ * 2 pages of text omitted ]

Confidential Page 44 of 125

SCHEDULE 4

GLOBAL SERVICES

[Note: To be used to describe any services, including support and maintenance, development or consultancy services to be provided by SGC.]

4-xx Global Support and Maintenance Services

1. Support and Maintenance Services

SGC shall provide Support and Maintenance Services as specified in Exhibit A below. Upon expiration of the initial support period (which ends on April 1st 2010), and upon expiration of each subsequent support period, a new support period shall automatically begin for a consecutive twelve (12) month term (“Renewal Period”) so long as (i) VGC pays the Support Fee within thirty (60) days of invoice by SGC; and (ii) SGC is still offering Support on such Standard Software. The initial annual Support Fee shall be stated in Schedule 5. The annual Support Fee for any Renewal Period shall not be less than the initial annual Support Fee and shall not increase from the previous year’s Support Fee by more than the percentage increase in the United Kingdom Retail Price Index (National Statistics Office) for the previous year. Once Support and Maintenance has been terminated by VGC or SGC, it can be reinstated only if SGC is still offering Support for such Standard Software and VGC pays a fee equal to the support fees that would have been payable for the period of time during which Support and Maintenance was terminated for such Standard Software.

10 2. Definitions.

(a) “Designated Contact” mean the contact person or group designated by VGC and agreed to by SGC who will coordinate all Support requests to SGC.

(b) “Error” means a reproducible defect in the Standard Software or Documentation when operated on a Supported Environment which causes the Standard Software not to operate substantially in accordance with the Documentation.

(c) “Resolution” means a modification or workaround to the Standard Software and/or Documentation provided by SGC to VGC intended to resolve an Error.

(d) “Support Hours” means the support hours specified on Schedule A for either the Standard Support period or the Premier Support period, as specified on the particular Order Form.

(e) “Supported Environment” for any SGC Marketing product(s) Software means the configurations of hardware and RDBMS (relational database) platforms and releases of the Software on which the Documentation states the Standard Software can run and for which SGC provides Support. Supported Environment for any other SGC product Software means the hardware and operating system platform which SGC provides Support for its VGC base.

(f) “Update” means a subsequent release of the Software that SGC generally makes available for Standard Software licensees at no additional license fee. Update shall not include any release, option or future product that SGC licenses separately. SGC will provide Updates for the Standard Software as and when developed for general release in SGC’s sole discretion.

Confidential Page 45 of 125

(g) “URN” means a “unique reference number” which uniquely identifies (is the key of) the primary entity in a particular VGC database, whether that primary entity represents a VGC, prospect, or any other data.

3. Support Levels.

SGC Decision Management Suite	Users	Support Level
SGC Predictive Analytics Director	Unlimited nr of client systems	Standard (9x5)
SGC Strategy Director	Unlimited nr of client systems	Standard (9x5)
SGC Decision Monitor	Unlimited nr of client systems	Standard (9x5)
SGC Database Decisioning Services	Unlimited nr of CPUs	Standard (9x5)
SGC Real-Time Decisioning Services	Unlimited nr of CPUs	Premium (24x7)
SGC Recommendation Advisor	Unlimited nr of seats	Premium (24x7)
SGC Interaction Services	Unlimited nr of CPUs	Premium (24x7)
SGC Campaign Management Decisioning Service	Unlimited nr of CPUs	Standard (9x5)
SGC Adaptive Decisioning Services	Unlimited nr of CPUs	Premium (24x7)
SGC Data Preparation Director	Unlimited nr of CPUs	Standard (9x5)
SGC Real-Time Proposition Monitoring	Unlimited nr of CPUs	Premium (24x7)

Confidential Page 46 of 125

SGC Marketing Director Suite	Unit	Support Level
SGC Marketing Director	Unlimited nr of URNs	Standard (9x5)
SGC OnLine Marketing Director	Unlimited nr of URNs	Standard (9x5)
SGC Mobile Marketing Director	Unlimited nr of URNs	Standard (9x5)

Confidential Page 47 of 125

Exhibit A - General Support Terms:

1. Technical Support

SGC shall make available to VGC Support and Maintenance services in the form of access via e-mail, web and telephone (telephone access during the Support Hours only) in English to the Designated Contacts and/or via the support website for technical information, technical advice and technical consultation regarding VGC’s use of the Standard Software.

Scope of Support. The primary objective of SGC Product Support is to assist VGC in maintaining and/or regaining an operational state by commercially reasonable efforts. The secondary objective of Support and Maintenance is to provide in due course the correction of any underlying Errors.

Product Support will include the following:

(a) Problem Prevention

1.	Notification of availability of generally available patches and releases.

(b) Problem Identification

1.	Clarification of SGC error messages,

2.	Assistance in identifying and verifying the causes of suspected Errors, and;

3.	Advice on bypassing identified Errors (providing workarounds) in the Standard Software.

1.	Reporting and tracking product defects and enhancement requests,

2.	Resolution of defects via workaround, maintenance release or in exceptional circumstances emergency patches, and

3.	Notification of status on issues, including escalation when required.

Resolution of Errors. SGC will endeavor to provide an initial response acknowledging Errors reported by VGC in accordance with the priority levels and response times set out in Schedule A. SGC will acknowledge each VGC report of a case by written acknowledgment setting forth a Case Problem Number for use by VGC and SGC in all correspondence relating to such case. Thereafter, SGC shall use commercially reasonable efforts to provide a Resolution.

Exceptions. SGC shall have no responsibility to fix any Errors arising out of or related to the following causes:

a.	any modifications or enhancements made by VGC to the Software or the application specific environment, unless such modifications or enhancements are specifically approved in writing by SGC Product Support; this includes but is not limited to;

- location of binaries

- scripts provided by SGC

- any application specific object (e.g., table, view, index, trigger)

- any application specific operating system permissions or role privileges

Any modification or combination of the Software (in whole or in part), including without limitation any portions of the Software code or Source Code customized by VGC that is not part of the unmodified Software delivered by SGC or for which SGC has not received and acknowledged receipt of the source code and agreed to Support.

c.	Use of the Software in an environment other than a Supported Environment.

d.	Accident; electrical or electromagnetic stress; neglect; misuse; failure or fluctuation of electric power, failure of media not furnished by SGC; operation of the Software with other media and hardware, software or telecommunication equipment or software; or causes other than ordinary use.

Extended Support Policy. Supplier will support each agrees endeavor to adequately train and obtain “SGC certification” for, and forward to SGC the names and contact details of the Designated Support Contacts.

VGC agrees to maintain procedures to facilitate reconstruction of any lost or altered files, data or programs and VGC agrees that SGC will not be responsible under any circumstances for any consequences arising from lost or corrupted data, files or programs. VGC is solely responsible for carrying out all necessary backup procedures for its own benefit, to ensure that data integrity can be maintained in the event of loss of data for any reason and that VGC programs can be restored.

VGC agrees to be solely responsible for the security of its confidential and proprietary information, and shall not disclose such information to SGC except on a ‘need to know’ basis for the purposes of SGC’s performance Support.

VGC agrees to notify SGC Product Support promptly of any malfunction of the Standard Software.

current version or Update of the Software for a period of two years, beginning on the date the Update is made generally available (“GA”) to Supplier’s customers. For a period of one year thereafter, Supplier will continue to support such Update using commercially reasonably efforts without reference to the response times set forth in Schedule A. Notwithstanding its actual GA date, the initial version of the Standard Software that is initially delivered to VGC will be supported for a period of two years from the date of delivery and then one additional year thereafter. Additionally, Supplier will support each current version or Update of the Software for a period of [ * ] after the date that the subsequent Update is made generally available (“GA”) to Supplier’s customers, in accordance with the provisions of Schedule 4.

Notwithstanding the foregoing, Chordiant will exercise reasonable efforts to provide diagnostic information to assist Customer in identifying the cause of any such Errors.

2. VGC Responsibilities

VGC agrees to:

(i) Provide SGC with remote access to VGC’s Standard Software during the term of this Agreement via an electronic link; and

(ii) Provide any reasonable assistance that SGC may require from the Designated Contacts and other appropriate VGC representatives (e.g. network administrator, as the case may be) to enable SGC to provide VGC with Support; and

(iii) Establish and maintain the conditions of the Supported Environment in compliance with SGC Certified Matrix and Technical Stack developed for the installed release or any environmental operating ranges specified by the manufacturers of the components of the Designated Center. Any deviation from this Support Environment voids all Resolutions within the timeframe set forth in Exhibit A.

In the event that VGC fails to comply with the above and this necessitates on-site attendance and/or the provision of additional SGC Services, VGC agrees to pay SGC for any time and expenses associated with such services at SGC’s then-current time and materials services rates.

VGC agrees to designate appropriately qualified and trained personnel to be the Designated Contacts, and only those individuals shall request Support services. VGC

agrees endeavor to adequately train and obtain “SGC certification” for, and forward to SGC the names and contact details of the Designated Support Contacts.

VGC agrees to notify SGC Product Support promptly of any malfunction of the Standard Software.

VGC agrees to provide SGC with access to and use of such of VGC’s information and facilities reasonably necessary to service the Standard Software including, but not limited to, an accurate description of the Designated Center and the current Supported Environment, the problem being reported, the transactions and any error messages, along with screenshots and log files.

VGC agrees to install the Current Release as soon as reasonably practicable, and in any event within the timeframe set out in SGC’s release policy in effect on the date Support is ordered.

1. PRIORITY LEVELS AND RESPONSE TIMES:

SCHEDULE A

Priority Level	Definition	Response Time to Designated Support Contact
PRIO-1 “Production down” Problem	Business impact is immediate and major, i.e. no material benefit from the Standard Software. The Standard Software in a mission critical “live production” environment is inoperative, renders the system on which it is installed inoperable or suffers a major performance degradation. No workaround is available.	1 business hour
PRIO-2 Mission critical Problem	Business impact is immediate and significant. The Standard Software in a production or a mission critical development environment is inoperative or fails to satisfy critical functional, operational or performance specifications.	4 business hours
PRIO-3 Serious Problem	Business impact is high but not widespread. An aspect of the software is inoperative, causes or results in substandard or erratic performance, but nonetheless the software operates substantially in accordance with specifications.	1 business day
PRIO-4 Problem	Business impact is moderate or small. No aspect of the software is inoperative. The software operates in accordance with specifications.	5 business days

NORMAL SUPPORT HOURS

VGC shall report all problems to the closest support center. SGC reserves the right to alter the location(s) of its support centers, and shall inform VGC in writing should this occur. SGC provides Product Support from the following support centers during their respective normal business hours as set out below:

EMEA

08:30 – 17:30 UK Time {Greenwich Mean Time (GMT) or British Summer Time (BST), as applicable}

08:30 – 17:30 Pacific Std Time (i.e. 16:30 – 01:30 UK Time, subject to time changes)

Americas

Asia/Pacific

08:30 – 17:30 Melbourne, Australia (i.e.23:30 – 08:30 UK Time, subject to time changes)

“Standard Support” means calls from any priority level which are supported from Monday to Friday during the normal business hours for VGC’s closest support center as set out above.

“Premier Support” means, in addition to Standard Support, VGC will receive extended 24 Hour support in respect of PRIO-1 CALLS FOR SGC’S PLATFORM AND FOUNDATION SOFTWARE ONLY from Monday to Sunday inclusive as noted below (not available for Application Products).

Notes:

(a)	PRIO-1 and PRIO – 2 calls are to be placed by phone andfollowed up with a detailed explanation of the problem via e-mail to the respective regional support center.

(b)	VGC may categorize the priority level in accordance with the above definitions when reporting the problem.

EXTENDED 24-HOUR SUPPORT

(Applicable to ‘PRIO-1’ Calls on SGC’s Platform and Foundation software only)

In respect of “Standard Support” and “Premier Support” for Platform and Foundation software products only, SGC extends support hours for the applicable days to 24 hours per applicable day for PRIO-1 calls only. Outside the normal regional support hours, SGC will decide if the Prio-1 Case continues to be handled by the EMEA support center, or if the PRIO -1 call will “follow the sun” to another support center and will, if required, initiate a page to 24-hour on-call Product Support engineers.

Please note that the extended 24 hour support in respect of ‘PRIO-1’ calls set forth above is only available and applicable to VGCs licensing SGC’s platform or foundation software, and does not apply to any other SGC application software, including but not limited to SGC’s Marketing Director or Selling Director product suites.

4-xx

If any contract of employment or collective agreement shall have effect as if originally made between VGC or a Successor Operator and any SGC Employee or a trade union or other body that represents employees as a result of the Employment Regulations and the CoA (without prejudice to any other rights or remedies which may be available to VGC or the Successor Operator, VGC may, within 1 month after becoming aware of the application of the Employment Regulations or the CoA to any such contract of employment or collective agreement, terminate such contract or agreement by serving the minimum period of notice required under the contract of employment of such employee or, where contractually permitted, by serving notice with immediate effect and making payment in lieu of notice.

SCHEDULE 4-XX

WORKER REGULATIONS

Worker Regulations

1.1	It is the Parties’ intention that SGC Employees shall not transfer to VGC or a Successor Operator on termination of the CoA, and that all SGC Employees shall remain employed by SGC.

1.2

1.3	SGC shall indemnify VGC or the Successor Operator and keep it indemnified against any Employment Losses:

1.3.1

relating to or arising out of a termination under Clause 1.1 and reimburse it for all costs and expenses (including, without limitation, any tax) incurred in employing such SGC Employee in respect of his employment on or after the Transfer Date and in respect of the employment of the SGC Employees prior to the Transfer Date;

1.3.2

which relate to, arise out of or are connected with any act or omission by the SGC having its origin prior to the Transfer Date and which VGC or the Successor Operator incurs in relation to any employment relationship or collective agreement of one or more of the Relevant Employees or any other person pursuant to the Employment Regulations and/or in respect of the CoA; and

1.3.3

which relate to, arise out of or are connected with any term or condition of employment in respect of early retirement arrangements and/or enhanced severance benefits (including but not limited to enhanced redundancy benefits).

1.4	As used in this Schedule, the following terms shall be defined as follows:

1.5	“contract of employment”, “collective agreement”, “relevant transfer” and “trade union” shall have the same meanings as in the Employment Regulations;

1.6	“Employment Losses” means any and all losses, liabilities, costs (including but not limited to, the costs of reasonable legal and other expert advice), charges and

expenses arising out of or connected with employment or the employment relationship (or the termination thereof) of SGC Employee, including those arising out of any actions, proceedings, claims, and demands;

1.7	“Successor Operator” means any third party that assumes any of VGC’s obligations under the CoA;

1.8	“SGC Employee” means those individuals who perform Services including (where the context permits) the service delivery manager.

1.9	“Transfer Date” means the date on which the SGC ceases providing the Services or any such date that any court or other tribunal of competent jurisdiction shall determine to be the “time of transfer” under the Transfer Regulations;

1.10	“Employment Regulations” means:

1.10.1

For VGCs subject to the laws of England and Wales - the Transfer of Undertakings (Protection of Employment) Regulations 1981;

1.10.2

For VGCs in the European Union but not subject to the laws of England and Wales, Directive 2001/23/EC of the European Parliament and the Council as implemented in the laws of the country of establishment of VGC; or

1.10.3

For all other VGCs, all local and applicable international laws regulating the transfer of undertakings.

A. LICENSE AND LICENSE FEES

SCHEDULE 5

GLOBAL PRICE BOOK

Listed VGCs:

[ * 1 page of text omitted ]

* License will not include the Marketing Director Suite

Organic Growth

There will be no change in the price for the license for a VGC to the extent that the number of subscribers supported by that VCG increases through organic growth.

Growth through Merger or Acqusition

Effect of Transfer:

then the VGC shall be required to pay the difference between the license and support fee amount for the bracket applicable immediately prior to the transfer and the license and support fee for the new bracket.

B. FUTURE PRICING

Majority Owned VGCs

As part of this agreement, Supplier offers the following pricing for any majority owned VGCs in which Vodafone acquires a majority stake.

	Nr of Subscr	Licence Fee CDM & CMD	Annual Support and Maintenance

Small	<5 mill	[ * ]	[ * ]
Medium	5 – 10 mill	[ * ]	[ * ]
Large	10 – 30 mill	[ * ]	[ * ]
Very Large	30 – 50 mill	[ * ]	[ * ]
Mega	>50 mill	[ * ]	[ * ]

Standard Software products offered as part of the CDM licence include the then current versions of the following:

·	Chordiant Data Preparation Director: unlimited number of concurrent users

Standard Software products offered as part of the CMD licence include the then current versions of the following:

·	Chordiant Predictive Analytics Director: unlimited number of concurrent users

·	Chordiant Adaptive Decisioning Services: unlimited number of CPUs

·	Chordiant Strategy Director: unlimited number of concurrent users

·	Chordiant Database Decisioning Services: unlimited number of CPUs

·	Chordiant Real-Time Decisioning Services: unlimited number of CPUs

·	Chordiant Recommendation Advisor: unlimited number of seats

·	Chordiant Interaction Services: unlimited number of CPUs

·	Chordiant Campaign Management Decisioning Service: unlimited number of CPUs

·	Chordiant Decision Monitor: unlimited number of concurrent users

·	Chordiant Real-Time Proposition Monitoring: unlimited number of CPUs

·	Chordiant Marketing Director, core module: unlimited number of concurrent users

·	Chordiant eMail Marketing Director: unlimited number of concurrent users

·	Chordiant Mobile Marketing Director: unlimited number of concurrent users

The Standard Software listed above shall be deemed accepted upon delivery.

Minority Owned VGCs

Partner Organisation

Organic Growth

There will be no change in the price for the license for a VGC to the extent that the number of subscribers supported by that VCG increases through organic growth.

Growth through Merger or Acqusition

If through acquisition or merger, a VGC increases its subscriber base following such acquisition or merger such that it moves from one pricing bracket (after taking into account any organic growth that has taken place up to the time of such acquisition) to another (ie, small to medium; large to very large) described in the future pricing matrix listed above, the VGC shall be required to pay the difference between the license and support fee amount for the bracket applicable immediately prior to the acquisition or merger and the license and support fee for the larger bracket applicable after giving effect to the acquisition or merger.

Effect of Transfer:

If there is a transfer of a CoA from one VGA to another VGA which has a subscriber base which would move that license to another pricing bracket after taking into account any organic growth up to the time of such transfer (ie, small to medium; large to very large) described in the future pricing matrix listed above, then the VGC shall be required to pay the difference between the license and support fee amount for the bracket applicable immediately prior to the transfer and the license and support fee for the new bracket.

CORPORATE SOCIAL RESPONSIBILITY

SCHEDULE 6

Each Party places great importance on the principle that business should be conducted responsibly. Vodafone Group Companies have established the Vodafone Business Principles, which they wish to promote with their third party suppliers. In addition, Vodafone Group Companies have established the Vodafone Code of Ethical Purchasing, which is consistent with the basic principles of the ▇▇ ▇▇▇▇ and ISO 14001 standards.

Supplier and SGCs agree to implement the principles set out in the Vodafone Code of Ethical Purchasing across each of their businesses and within each of their own supply chains.

In the event that the Vodafone Code of Ethical Purchasing or Vodafone Business Principles are amended, Supplier and SGCs shall be informed.

Vodafone Code of Ethical Purchasing

VODAFONE CODE OF ETHICAL PURCHASING

As one of the world’s largest mobile telecommunications network companies, Vodafone has a significant role to play in enriching people’s lives.

We also understand that we have a significant role to play in managing our business carefully and responsibly, which is why we have adopted a set of core Values and Business Principles to govern our activities and interactions with all our stakeholders across the world, including our suppliers.

Our Business Principles declare a commitment “to promote the application of our Business Principles by our business partners and suppliers.”

The following Code of Ethical Purchasing is to be read in conjunction with our Business Principles, and is designed to promote safe and fair working conditions, and the responsible management of environmental and social issues in Vodafone’s supply chain.

The Code has been developed in consultation with employees, suppliers, investors and Non-Governmental Organisations. It sets out the standards we wish to see achieved by Vodafone and our suppliers over time.

The principle of continuous improvement applies to all aspects of the Code.

In accordance with the implementation provisions of the Code, Vodafone will require first level suppliers to acknowledge their understanding and acceptance of our Code and to confirm that they will comply.

Vodafone will work collaboratively with our suppliers on the implementation of the Code, which may include joint audits and site visits to assess performance.

Vodafone will publicly report on the implementation of and compliance with the Code.

Vodafone will encourage all suppliers to implement our Code across their whole business and within their own supply chains.

IMPLEMENTATION OF THE CODE

Ownership

·	The Vodafone Director of Global Supply Chain Management is the owner of the Vodafone Code of Ethical Purchasing, and reports to the Integrations and Operations Committee on the implementation of the Code.

·	The Director of Global Supply Chain Management and the Heads of Supply Chain Management in each of the Operating Companies have operational responsibility for the implementation of the Code.

Communication

·	Vodafone will communicate and promote its Code of Ethical Purchasing internally and externally to relevant stakeholders.

·	Suppliers are encouraged to take all reasonable endeavours to promote the Code to their suppliers and subcontractors.

Training and Awareness

·	Vodafone and its suppliers will ensure that all relevant people are provided with appropriate training and guidelines to support the Code.

Application

·	Suppliers applying this code are expected to comply with all relevant laws, regulations and standards in all of the countries in which they operate.

·	The Code is applied for the purposes of promoting safe and fair working conditions and the responsible management of environmental and social issues in Vodafone’s supply chain.

Suppliers will be asked to confirm (in writing) that they are implementing the Code, or similar purchasing standard such as the Ethical Trading Initiative (ETI) Base Code, Social Accountability International’s ▇▇ ▇▇▇▇, or the Chartered Institute of Purchasing and Supply Ethical Business Practices in Purchasing and Supply.

·	Vodafone will work collaboratively with its suppliers on the implementation of the Code, which may include joint audits1 and site visits to assess performance against the Code.

·	Suppliers will be asked to provide Vodafone with reasonable access to all relevant information and premises for the purposes of assessing performance against the Code, and use reasonable endeavours to ensure that sub-contractors do the same.

1	Audits would ideally be conducted jointly between Vodafone and the supplier, and may also include the assistance of an industry representative, or relevant Non-Governmental Organisation.

Corrective Action

·	Suppliers are expected to identify and correct any activities that fall below the standard of the Code.

·	Suppliers shall immediately report to Vodafone any serious breaches of the Code, together with an agreed schedule for corrective action.

·	Where serious breaches of the Code persist, Vodafone will consider termination of the business relationship with the supplier concerned.

Monitoring and Reporting

·	Vodafone’s Corporate Responsibility and Purchasing teams will use a risk-based approach2 to monitor implementation of and adherence to the Code in our supply chain, and will report progress in the annual Vodafone Corporate Social Responsibility Report.

·	Vodafone and its suppliers will use reasonable endeavours to provide employees and other stakeholders with a confidential means to report any actual or potential breach of the Code.

1	Vodafone will focus on those parts of the supply chain where the risk of not meeting the Code is highest and where the maximum difference can be made with resources available.

Corporate Social Responsbility (Schedule 6 to CoA)

CODE OF ETHICAL PURCHASING

1. Child Labour

·	No person is employed who is below the minimum legal age for employment.3

·	Children (persons under 18 years) are not employed for any hazardous work, or work that is inconsistent with the child’s personal development.4

·	Where a child is employed, the best interests of the child shall be the primary consideration.

·	Policies and programmes that assist any child found to be performing child labour are contributed to, supported, or developed.

2. Forced Labour

·	Forced, bonded or compulsory labour is not used and employees are free to leave their employment after reasonable notice. Employees are not required to lodge deposits of money or identity papers with their employer.

3. Health & Safety

·	A healthy and safe working environment is provided for employees, in accordance with international standards and national laws. This includes access to clean toilet facilities, drinkable water and, if applicable, sanitary facilities for food storage.

·	Where an employer provides accommodation, it shall be clean, safe and meet the basic needs of employees.

·	Appropriate health and safety information and training is provided to employees.

4. Freedom of Association

·	As far as any relevant laws allow, all employees are free to join or not to join trade unions or similar external representative organisations.

5. Discrimination

·	Negative discrimination5 including racial or sexual discrimination is prohibited.

6. Disciplinary Practices

·	Employees are treated with respect and dignity. Physical or verbal abuse or other harassment and any threats or other forms of intimidation are prohibited.

7. Working Hours

·	Working hours of employees comply with national laws and are not excessive6.

8. Payment

·	Employees understand their employment conditions and fair and reasonable pay7 and terms are provided.

2	Minimum age is the age of completion of compulsory schooling, or not less than 15 years (or not less than 14 years, in countries where educational facilities are insufficiently developed).

3	Personal development includes a child’s health or physical, mental, spiritual, moral or social development.

4	Forms of discrimination may include race, colour, sex, sexual orientation, religion, political opinion, nationality, social origin, social status, indigenous status, disability, age and union membership.

5	Consideration should be given to the type of work performed and the acceptable working hours for the role and the country concerned.

6	Consideration should be given to the type of work performed and the market wage for the work as well as any statutory minimum wage for the country concerned.

Corporate Social Responsbility (Schedule 6 to CoA)

9. Individual Conduct

·	No form of bribery, including improper offers for payments to or from employees, or organisations, is tolerated.

10. Environment

·	Processes are in place to actively improve the efficiency with which finite resources (such as energy, water, raw materials) are used.

·	Appropriate management, operational and technical controls are in place to minimise the release of harmful emissions to the environment.

·	Appropriate measures are in place to improve the environmental performance of products and services when in use by the end user.

·	Innovative developments in products and services that offer environmental and social benefits are supported.

REFERENCES

Vodafone’s Code of Ethical Purchasing is based on the following international standards:

·	The United Nations Universal Declaration of Human Rights.

·	The Conventions of the International Labour Organisation.

·	The United Nations Convention on the Rights of the Child.

Reference has also been made to:

·	Social Accountability International’s ▇▇ ▇▇▇▇ Standard

·	The Ethical Trading Initiative (ETI) Base Code, and

·	The UN Draft Norms of Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights (2003)

With respect to the International Labour Organisation Conventions on Labour Standards, the following provisions have been referenced in the development of this Code:

·	Convention 1 (Acceptable working hours)

·	Conventions 29 (Forced and bonded Labour)

·	Convention 87, 98, and 135 (Freedom of Association)

·	Convention 111 (Discrimination)

·	Convention 138 (Minimum Age)

·	Convention 135& Recommendation 143 (Workers’ Representatives Convention)

·	Convention 155 Article 19 (Health and safety training)

DEFINITIONS

A child means a person below the age of 18 years, as defined in Article 1 of the United Nations Convention on the Rights of the Child.

Personal development is described in the Article 32 of the United Nations Convention on the Rights of the Child.

Vodafone Business Principles

Corporate Social Responsbility (Schedule 6 to CoA)

Vodafone’s Business Principles

Vodafone’s success flows from our commitment to sound business conduct and the way we interact with our stakeholders – shareholders, employees, customers, business partners and suppliers - government and regulators, communities and society, and the environment.

As a global business, Vodafone operates within a wide range of legal jurisdictions. We respect the rule of law within these jurisdictions and support appropriate internationally accepted standards including those on human rights. Our Business Principles represent the additional commitments we make to our stakeholders.

Our Business Principles apply to all Vodafone companies in which we have a majority equity interest and to all Vodafone employees. Where Vodafone operates in conjunction with business partners, third parties or in joint venture arrangements where we do not have a majority equity interest, we will seek to promote the application of our Business Principles.

We understand that we will be judged on whether we live up to our Business Principles. We will share good practice across Vodafone as we strive for continuous performance improvement. We will measure, review and report openly on our performance against our Business Principles.

Corporate Social Responsbility (Schedule 6 to CoA)

1. Value Creation

We believe that competition in a market economy, pursued in an ethical way, is the best way of delivering benefits to our stakeholders.

·	We are committed to providing the best possible return for our shareholders. The criteria for our investment decisions, acquisitions and business relationships will be primarily economic but they will also include social and environmental considerations.

2. Public Policy

We will voice our opinions on government proposals and other matters that may affect our stake-holders but we will not make gifts or donations to political parties or intervene in party political matters.

3. Communications

We will communicate openly and transparently with all of our stakeholders within the bounds of commercial confidentiality.

4. Customers

We are committed to providing our customers with safe, reliable products and services that represent good value for money.

·	We will work to understand, anticipate and respond to the needs of our customers and to provide them with innovative products and services.

·	We value the trust our customers place in us and will safeguard the information provided to us in accordance with relevant laws.

5. Employees

Relationships with and between employees are based upon respect for individuals and their human rights.

·	We will pursue equality of opportunity and diversity through our employment policies.

·	We will encourage our employees to reach their full potential through training and development.

·	We will promote employee participation in share incentive plans.

6. Individual Conduct

We expect all our employees to act with honesty, integrity and fairness.

·	No form of bribery, including improper offers or payments to or from employees will be tolerated.

·	All employees are expected to avoid any contacts that might lead to, or suggest, a conflict of interest between their personal activities and the business of Vodafone.

·	All employees are expected to avoid accepting hospitality or gifts that might appear to place them under an obligation.

7. Environment

We are committed to sustainable business practices and environmental protection.

·	We will use finite resources carefully.

·	We will promote the use of operational practices that reduce the environmental burden associated with our activities.

·	We will support innovative developments in products and services that can offer environmental and social benefits.

8. Communities and Society

We accept our responsibility to engage with communities and we will invest in society in a way that makes effective use of our resources, including support for charitable organisations.

9. Health and Safety

We are committed to the health and safety of our customers, employees and the communities in which we operate.

·	We will disclose any information that comes to our knowledge, which clearly demonstrates that any of our products or services breach internationally accepted safety standards or guidelines.

Corporate Social Responsbility (Schedule 6 to CoA)

10. Business Partners and Suppliers

We will pursue mutually beneficial relationships with our business partners and suppliers.

·	We will seek to promote the application of our Business Principles by our business partners and suppliers.

Corporate Social Responsbility (Schedule 6 to CoA)

SCHEDULE 7

CURRENCY CONVERSION PROCESS

If Supplier’s Prices are stated in €:

CURRENCY CONVERSION PROCESS

[Note: only to be used if VGC payments are not in Euros]

On and from the Effective Date of the Contract of Adherence, the price of the Products fixed in Euros shall be translated for payment from the Euro to a Relevant Currency (as defined below) if required by VGC using the foreign exchange rate formula as set out below.

The foreign exchange rate used shall be determined by using an average of the previous 5 days (immediately prior to the date funds are transferred to Supplier) mid price foreign exchange rates quoted on the Reuters “WMRSPOT” pages (such as the WMRSPOT29 for Euro GBP or ▇▇▇▇▇▇▇▇▇ for Euro/USD).

The calculated foreign exchange rate will be used to translate any new prices, fees or charges agreed in relation to Purchase Orders issued by VGC prior to the Calculation Date following the Effective Date of the Contract of Adherence.

In the event that on any particular day the WRMSPOT pages required are not available then an average spot rate will be determined using quotes from Barclays Bank Plc, London and Citibank N.A.; London at 11.00 am on the same day. In the event that the required day is not a Business Day then the nearest preceding Business Day should be used.

On the Calculation Date (as defined below) following the Effective Date8 of the relevant Contract of Adherence and on each Calculation Date thereafter, the price of the Products fixed in euros shall be translated for payment from the Euro to a “Relevant Currency” as defined below and required by VGC for the following financial year using the Exchange Rate Formula as set out below. VGC will provide Supplier with copies of detailed calculations with supporting documentation.

In the event that VGC chooses to pay in a Relevant Currency for any financial year (April 1 to March 31) during the term of the Contract of Adherence, the selected currency shall apply in relation to all Purchase Orders issued by VGC during the financial year selected.

The selected currency shall continue to apply, unless and until VGC elects to revert to payment in Euros as set out in paragraph g) below.

“Forward Rate” means, in respect of each Relevant Currency and each Calculation Period, the rate determined by applying the following formula:

FR=Spot Rate x (1+(RC x M/12)

(1+(RE x M/12)

Where:

“FR” is the Forward Rate;

“M” is the number of months in the relevant Calculation Period;

“RC” is the yield derived from the zero coupon yield curve in the Relevant Currency for a period equal to the relevant Calculation Period as quoted on the page of Reuters Money Markets Service Index page ZERO/1 at approximately 12 noon (London time) on the Calculation Date;

“RE” is the yield derived from the zero coupon yield curve in Euros for a period equal to the relevant Calculation Period as quoted on the relevant page of Reuters Money Markets Service Index page ZERO/1 Page 0#EURZ=R) at approximately 12 noon on the Calculation Date.

VGC may elect prior to the first Valuation Date by written and confirmed notice to the Supplier in respect of the financial year commencing on 1 April next following the Calculation Date to make payment in respect of Purchase Orders issued during such financial year in Euros instead of its Relevant Currency, in which event no such determination will be necessary.

7.	Definitions in this Schedule 7:

“Business Day” means a day (other than a Saturday or Sunday) on which WMRSPOT is published on the Reuters Money Markets Service and banks are open for business in London;

“Calculation Date” means the first Thursday in January or if that is not a Business Day the immediately succeeding (Tuesday or Thursday) which is a Business Day;

“Calculation Period” means the First Calculation Period, Second Calculation Period, Third Calculation Period, Fourth Calculation Period and Fifth Calculation Period or any of them as the context may require;

“First Calculation Period” means the period from the Calculation Date to the day falling three calendar months after such Calculation Date;

“Second Calculation Period” means the period from the Calculation Date to the day falling six calendar months after such Calculation Date;

“Third Calculation Period” means the period from the Calculation Date to the day falling nine calendar months after such Calculation Date;

“Fourth Calculation Period” means the period from the Calculation Date to the day falling twelve calendar months after such Calculation Date;

“Fifth Calculation Period” means the period from the Calculation Date to the day falling fifteen calendar months after such Calculation Date;

“Relevant Currency” means each of Japanese Yen; United States Dollar; British Pound Sterling, Australian Dollar, New Zealand Dollar, Polish Zloty, Hungarian Forint and Swedish Krone;

“Spot Quotations” means in respect of each Valuation Date and each Relevant Currency the mid-rate of exchange for the purchase of (euros) in the London foreign exchange market with such Relevant Currency at or about 4 pm (London time) on such Valuation Date as shown on page WMRSPOT of the Reuters Money Markets Service;

“Spot Rate” means the average of the Spot Quotations for each of the Valuation Dates;

“Valuation Date” means each Tuesday and Thursday falling in each of the four calendar weeks immediately preceding the Calculation Date or if any such day is not a Business Day the immediately preceding Business Day.

If Supplier’s Prices are stated in USD$:

CURRENCY CONVERSION PROCESS

[Note: only to be used if VGC payments are not in US Dollars]

On and from the Effective Date of the Contract of Adherence, the price of the Products fixed in US Dollars shall be translated for payment from the US Dollar to a Relevant Currency (as defined below) if required by VGC using the foreign exchange rate formula as set out below.

The foreign exchange rate used shall be determined by using an average of the previous 5 days (immediately prior to the date funds are transferred to Supplier) mid price foreign exchange rates quoted on the Reuters “WMRSPOT” pages (such as the ▇▇▇▇▇▇▇▇▇ for GBP/USD or WMRSPOT05 for Euro/USD).

On the Calculation Date (as defined below) following the Effective Date of the relevant Contract of Adherence and on each Calculation Date thereafter, the price of the Products fixed in US Dollars shall be translated for payment from the US Dollar to a “Relevant Currency” as defined below and required by VGC for the following financial year using the Exchange Rate Formula as set out below. VGC will provide Supplier with copies of detailed calculations with supporting documentation.

The selected currency shall continue to apply, unless and until VGC elects to revert to payment in US Dollars as set out in paragraph g) below.

On the Calculation Date in each year, Vodafone Group Plc shall determine the Average Forward rate for each Relevant Currency. The Average Forward Rate for each Relevant Currency shall be the average of the five Forward Rates for such Relevant Currency for each of the Calculation Periods. The “Forward Rate” means, in respect of each Relevant Currency and each Calculation Period, the rate determined by applying the following formula:

FR=Spot Rate x (1+(RC x M/12)

(1+(RE x M/12)

Where:

“FR” is the Forward Rate;

“M” is the number of months in the relevant Calculation Period;

“RE” is the yield derived from the zero coupon yield curve in US Dollars for a period equal to the relevant Calculation Period as quoted on the relevant page of Reuters Money Markets Service Index page ZERO/1 Page 0#USDZ=R) at approximately 12 noon on the Calculation Date.

VGC may elect prior to the first Valuation Date by written and confirmed notice to the Supplier in respect of the financial year commencing on 1 April next following the Calculation Date to make payment in respect of Purchase Orders issued during such financial year in US Dollars instead of its Relevant Currency, in which event no such determination will be necessary.

9.	Definitions in this Schedule 7:

“Business Day” means a day (other than a Saturday or Sunday) on which WMRSPOT is published on the Reuters Money Markets Service and banks are open for business in London;

“Calculation Date” means the first Thursday in January or if that is not a Business Day the immediately succeeding (Tuesday or Thursday) which is a Business Day;

“First Calculation Period” means the period from the Calculation Date to the day falling three calendar months after such Calculation Date;

“Second Calculation Period” means the period from the Calculation Date to the day falling six calendar months after such Calculation Date;

“Third Calculation Period” means the period from the Calculation Date to the day falling nine calendar months after such Calculation Date;

“Fourth Calculation Period” means the period from the Calculation Date to the day falling twelve calendar months after such Calculation Date;

“Fifth Calculation Period” means the period from the Calculation Date to the day falling fifteen calendar months after such Calculation Date;

“Relevant Currency” means each of Japanese Yen; Euro; British Pound Sterling, Australian Dollar, New Zealand Dollar, Polish Zloty, Hungarian Forint and Swedish Krone;

“Spot Quotations” means in respect of each Valuation Date and each Relevant Currency the mid-rate of exchange for the purchase of (US Dollars) in the London foreign exchange market with such Relevant Currency at or about 4 pm (London time) on such Valuation Date as shown on page WMRSPOT of the Reuters Money Markets Service;

“Spot Rate” means the average of the Spot Quotations for each of the Valuation Dates;

Data Protection (Schedule 8 to CoA)

SCHEDULE 8

SCHEDULE 9

SOURCE CODE ESCROW AGREEMENT

(TEMPLATE)

Escrow Agreement Between:

Single Licensee

Escrow Agreement No:

Dated:

(1)	[ ] whose registered office is at (CRN: [number]) ("the Owner");

(2)	Vodafone Group Services Limited whose registered office is at Vodafone House, The Connection, Newbury, Berkshire RG14 2FN, England (CRN: ) ("the Licensee") and

(3)	NCC ESCROW INTERNATIONAL LIMITED whose registered office is at Manchester Technology Centre, Oxford Road, Manchester M1 7EF, ENGLAND (CRN: 3081952) ("NCC Escrow").

1. Preliminary:

(A)	The Licensee has been granted a licence to use a software package comprising computer programs.

Alternative Clause for Development Agreement

(A)	The Owner has granted or has agreed to grant a licence to the Licensee to use a software package that the Owner is developing to the Licensee’s specification pursuant to the [Development ] Agreement.

(B)	Certain technical information and documentation relating to the software package is the confidential property of the Owner.

(C)	The Owner acknowledges that upon the occurrence of any of the Release Events of this Agreement, the Licensee may require possession of and a right to use the technical information and documentation to be deposited with and held by NCC Escrow under this Agreement.

(D)	Each of the Parties acknowledges that the consideration for their respective undertakings under this Agreement are the undertakings and obligations agreed to by each of the Parties hereunder.

2. It is agreed that:

2.1 Definitions

In this Agreement the following terms shall have the following meanings:

"Agreement" means the terms and conditions of this escrow agreement set out below, the schedules and Appendix A hereto.

"Full Verification" means the tests and processes constituting NCC Escrow’s Full Verification service as described in schedule 3 hereto and/or such other tests and processes as may be agreed between the parties for the verification of the Material.

“Group Company” means in relation to the Licensee, Vodafone Group Plc and any company or corporation in respect of which Vodafone Group Plc owns (directly or indirectly) more than 15% of the issued share capital.

"Independent Expert" means a suitably qualified solicitor or barrister.

"Integrity Testing" means those tests and processes forming NCC Escrow’s integrity testing service as described in schedule 3 hereto in so far as they are applicable to the Material.

"Intellectual Property Rights" mean any copyright, patent, design patent, registered designs, design rights, utility models, trademarks, service marks, an application for any of these or the right to apply for the same, trade secrets, know how, database rights, moral rights, confidential information, trade or business names, domain names, and any other rights of a similar nature including industrial and proprietary rights and other similar protected rights in any country and any licences under or in respect of such rights.

"Licence Agreement" means the agreement under which the Licensee was granted rights to the Package and which is part of the [ ] Agreement for the supply of Software and Services entered into by the Owner and the Licensee dated [ ].

Alternative clause 1.7 for use with Development Agreement

1.7 “Development Agreement” means the development agreement between the Owner and the Licensee relating to the development of the Package entered into by the Owner and the Licensee dated [ ]

“Maintenance Agreement” means the agreement for the support and maintenance of the Software which is part of the [ ] Agreement for the supply of Software and Services entered into by the Owner and the Licensee dated [ ]

"Material" means the Source Code of the Package and such other materials (including specifically but without limitation, firmware) and documentation (including updates and upgrades thereto and new versions thereof) as are necessary to comply with clause 2 hereof.

15.5.10

"Package" or “Software” means the software package as more particularly described in Schedule 1 and any updates, upgrades or new versions thereof licensed to the Licensee under the Licence [Development] Agreement, any maintenance agreement, any other agreement between the Owner and the Licensee or this Agreement.

15.5.11

“Release Events” means the events set out in clause 6.1.

15.5.12

"Source Code" means the computer programming code of the Package in human readable form that would enable a skilled third party on behalf of the Licensee to support, maintain and modify the Software .

15.5.13

“Working Day” means a day other than a Saturday, Sunday, or public holiday in England.

2.2	Owner's Duties and Warranties

The Owner shall:

deliver at its cost two copies of the Material to NCC Escrow within 15 days of the date of this Agreement or the date of acceptance of the Software, whichever is later;

deliver at its cost to NCC Escrow two replacement copies of the Material each time that the Package is updated or amended or changed pursuant to the Licence Agreement, the Maintenance Agreement or any other agreement between the Owner and the Licensee or this Agreement within 30 days of such update, amendment or change;

at all times ensure that the Material as delivered to NCC Escrow

is capable of being used to generate the latest version of the Package issued to the Licensee and is capable of being used to understand, maintain, modify, correct and develop the latest version of the Package issued to the Licensee;

shall notify NCC Escrow immediately of any circumstances under Clause 2.1.2 which necessitates a replacement deposit of the Material;

deliver to NCC Escrow two replacement copies of the Material within 12 months of the last delivery to ensure the integrity of the Material media;

[Alternative clauses 2.1.2 – 2.1.5 for use with Development Agreements

deliver at its cost within 7 days two copies of each part of the Material that has passed acceptance tests in accordance with the terms of the [Development Agreement] and two complete copies of the Material within 7 days of acceptance of the Package by the Licensee in accordance with the terms of the Development Agreement;

at all times ensure that the Material as delivered to NCC Escrow is capable of being used to generate the latest version of the Package issued to the Licensee and shall deliver to NCC Escrow further copies of the Material as and when necessary;

during the development of the Material under the [Development Agreement], deliver to NCC Escrow two replacement copies of the Material within 3 months of the last delivery;

upon completion of all development work on the Material under the [Development Agreement], deliver to NCC Escrow two replacement copies of the Material within 12 months of the last delivery to ensure the integrity of the Material media;]

deliver two replacement copies of the Material to NCC Escrow within 14 days of receipt of a notice served upon it by NCC Escrow under the provisions of clause 4.1.5. In such a case the Owner may recover from NCC Escrow its reasonable costs for the preparation of two copies of the Material;

deliver with each deposit of the Material the following information:

(1)	details of the deposit including full name (original name as set out under Schedule 1 together with any new names given to the Package by the Owner) and version details, media type, backup command/software used, compression used, archive hardware and operating system details; and

(2)	password/encryption details required to access the Material;

deliver with each deposit of the Material any of the following technical information (where applicable) which must be sufficient to allow a reasonably skilled software programmer or engineer to understand, maintain, modify and correct the Material:

(1)	documentation describing the procedures for building, compiling and installing the software, including names and versions of the development tools;

(2)	software design information (e.g. module names and functionality); and

(3)	name and contact details of employees with knowledge of how to

oSource Code Escrow (Template) (Schedule 9 to CoA)

maintain and support the Material; and

deposit a backup copy of the object code of any third party software package required to access, install, build or compile or otherwise use the Material.

The Owner warrants:

on its own behalf and on behalf of each and every director of the Owner, to NCC Escrow, that it is the sole legal and beneficial owner of the Intellectual Property Rights in the Material (other than any third party object code referred to in clause 2.1.9) or in respect of any Source Code forming part of the Material that it does not own, it has been granted valid and ongoing rights under licence by the third party owner(s) thereof to deal with such Source Code in the manner anticipated under this Agreement and that the Owner has the express authority of such third party owner(s) to deposit the same under this Agreement as evidenced by signed letter(s) of authorisation in the form set out in Appendix A, to be provided to NCC Escrow prior to or no later than at the time of such deposits;

that in entering into this Agreement, it is not in breach of any of its ongoing express or implied obligations to any third party(s);

that the Material lodged under clause 2.1 shall contain all information in human-readable form (except for any third party object codes) and on suitable media to enable a reasonably skilled programmer or analyst to ( develop the package if and to the extent permitted in the [Development/Licence Agreement] and to understand, maintain, modify and correct the Package; and

that in respect of any third party object code that the Owner deposits with NCC Escrow under this Agreement in conjunction with the Material, that it has full right and authority to do so.

2.3	Licensee’s Undertaking

In the event that the Material is released under clause 6, the Licensee shall subject to the provisions of this clause keep the Material confidential and shall use the Material only for the purpose of [developing], understanding, maintaining, modifying and correcting the Package exclusively on behalf of the Licensee or to such greater extent as is permitted under the Licence [Development] Agreement and/or clause 6 hereof.

3.2 The Licensee may disclose the Material to and/or permit useage by Group Companies/third parties to the extent permitted in the [Development]/Licence Agreement and where such disclosure or useage occurs shall ensure that such Group Companies/third parties are subject to the same obligations of confidence as are contained herein.

2.4	NCC Escrow's Duties and Warranties

NCC Escrow warrants that it shall:

hold the Material in a safe and secure environment;

upon receipt of any deposit of the Material, apply the Integrity Testing to the Material in accordance with clause 9;

inform the Owner and the Licensee of the receipt of any deposit

of the Material by way of a copy of the Integrity Testing report or Full Verification report (as the case may be) generated from the testing carried out under clause 9;

at all times retain at each of two (2) different locations one (1) copy of the latest verified deposit of the Material and one (1) copy of the previous deposit of the material and notify the Owner and the Licensee in writing of each such location; and

notify the Owner and the Licensee if it becomes aware at any time during the term of this Agreement that the copy of the Material held by it has been lost, damaged or destroyed.

NCC Escrow shall not be responsible for procuring the delivery of the Material in the event of failure by the Owner to do so, but NCC Escrow must as soon as practicable notify the Licensee of the Owner's failure to deposit any Material under this Agreement of which it is aware.

NCC Escrow may with the Licensee’s prior written consent such consent not to be unreasonably withheld or delayed, appoint agents, contractors or sub-contractors to carry out the Integrity Testing and the Full Verification and NCC Escrow shall ensure that such agents, contractors or sub-contractors are bound by the same confidentiality obligations as are contained in clause 7.

NCC Escrow shall have the right to make such copies of the Material as may be necessary solely for the purposes of this Agreement and following termination of this Agreement all such copies shall be destroyed or returned to the Owner at its request.

4.5

NCC Escrow shall obtain and maintain with a reputable insurance company for the duration of its obligations under this Agreement and for a period of twelve months thereafter the following insurances; public and product liability insurance with a limit of not less than £10 million per occurrence and professional indemnity (errors and omissions) insurance with a limit of not less than £5 million per occurrence together with such other insurances required by law with a limit in each of not less than £5 million in relation to any one claim (or such greater amounts as required by law). NCC Escrow shall administer its insurances in accordance with good industry practice at all times. If required by the Licensee NCC Escrow shall provide evidence of its insurances and payment of any premium (in a form satisfactory to the Licensee) and shall not subsequently reduce the level of such insurance.

4.6

In addition to all warranties and conditions implied by statute or otherwise , NCC Escrow warrants and represents to each of the Owner and Licensee that each of its obligations under this Agreement, including without limitation its obligations under this Clause 4, shall be performed promptly in a timely, professional and workmanlike manner in accordance with best industry practice.

2.5

Payment

The Owner and the Licensee shall pay NCC Escrow’s standard fees and charges as published from time to time or as otherwise agreed in accordance with this Agreement and in the proportions set out in Schedule 2. NCC Escrow’s fees as published are exclusive of value added tax and inclusive of all other taxes.

NCC Escrow and the Licensee shall meet once a year to discuss in good faith the

level of NCC Escrow’s standard fees and charges for its services applicable under this Agreement. In the absence of agreement, NCC Escrow shall be entitled to increase its fee and charges once a year upon 45 days notice to the parties, provided that any increase may not exceed the lesser of 10% or the rate provided by the Retail Prices Index plus 5%.

All invoices are payable within 30 days from the end of the month in which the invoice is received. NCC Escrow reserves the right to charge interest in respect of the late payment of any sum due under this Agreement (as well after as before judgement) at the rate of 2% per annum over the prevailing base rate of the HSBC Bank Plc accruing on a daily basis from the due date therefore until full payment.

2.6	Release Events

Subject to the provisions of clauses 6.2 and 6.3 and upon receipt of its release fee and any other fees outstanding under this Agreement, NCC Escrow will release the Material to a duly authorised officer of the Licensee if any of the following events (“Release Event(s)”) occur:-

the Owner enters into any company voluntary arrangement or individual voluntary arrangement or (being a company) enters into liquidation whether compulsory or voluntary (other than for the purposes of solvent reconstruction or amalgamation) or has a receiver or administrative receiver appointed over all or any part of its assets or undertaking or an Administration Order is made or (being an individual or partnership) becomes or is adjudicated bankrupt, or an event occurs within the jurisdiction of the country in which the Owner is situated which has a similar effect to any of the above events in the United Kingdom; or

the Owner ceases or threatens to cease to carry on business; or

the Owner assigns its rights in the Intellectual Property Rights in the Material and the assignee fails within 60 days of such assignment to offer the Licensee substantially similar protection to that provided by this Agreement without significantly increasing the cost to the Licensee; or

the Owner is in breach of its obligations as to [development], support, maintenance or modification of the Package under the Licence Agreement [Development Agreement] or any maintenance agreement entered into in connection with the Package and has failed to remedy such default notified by the Licensee to the Owner within a reasonable period.

6.1.5 The Owner fails to make a deposit of new, corrected or revised Material within 5 days of receipt of the notice of test failure pursuant to clause 9.4 hereof.

The Licensee must notify NCC Escrow of the Release Event(s) specified in clause 6.1 by delivering within one month of the date of actual knowledge of the Release Event to NCC Escrow a statutory or notarised declaration ("the Declaration") made by an officer of the Licensee declaring that such Release Event has occurred, setting out the facts and circumstances of the Release Event.

Upon receipt of a Declaration from the Licensee claiming a Release Event under clause 6.1:

NCC Escrow shall immediately submit a copy of the Declaration to the Owner by courier or equivalent type of post; and

unless within 5 days after the date of despatch the Owner delivers to NCC Escrow a counter-notice signed by a duly authorised officer of the Owner stating that no such Release Event has occurred, or that the breach giving rise to the Release Event has been rectified as shown by documentation in support thereof

NCC Escrow will immediately release the Material to the Licensee upon the expiry of such 5 day period.

Upon receipt of the counter-notice from the Owner under clause 6.3.2, NCC Escrow shall to the extent that it is reasonably possible, the same day, or as soon as practicable thereafter send a copy of the counter-notice and any supporting evidence to the Licensee.

In the event of any dispute as to the occurrence of any of the Release Events , NCC Escrow shall promptly notify the Owner and the Licensee of the dispute and such dispute will then be referred as soon as possible having regard to the urgency of the dispute by NCC Escrow to the Managing Director for the time being of NCC Escrow to appoint an Independent Expert or if either the Owner or the Licensee so requests within 5 Working Days of notification of a dispute as to the occurrence of any of the Release Events NCC shall forthwith apply to The Law Society or The Bar Council (or successor bodies) for the appointment of an Independent Expert on behalf of the Owner and the Licensee.

Within 5 Working Days of the appointment of the Independent Expert, the Owner and the Licensee shall each provide full written submissions to the Independent Expert together with all relevant documentary evidence in their possession in support of their claim, whereupon the Independent Expert shall give a decision on the matter within 14 Working Days of the date of referral and shall send that decision to the parties and NCC Escrow. The Independent Expert's decision shall be final and binding on all parties to this Agreement and shall not be subject to appeal to a court in legal proceedings except in the case of manifest error.

If the Independent Expert's decision is in favour of the Licensee, NCC Escrow is hereby authorised to release and deliver the Material to the Licensee within 2 Working Days of the decision being declared by the Independent Expert to the parties.

The parties hereby agree that the reasonable costs and expenses of the Independent Expert shall be borne by the Owner (or its agent or any party acting on its behalf) where the Independent Expert decides that the relevant Release Event(s) has occurred, or the Licensee where the Independent Expert decides that the relevant Release Event(s) has not occurred.

Subject to clause 6.2 above for the avoidance of doubt, where clause 6.1.1 or 6.1.2 Release Events have been triggered, a subsequent remedy by the Owner will not invalidate the Licensee’s right to apply to NCC Escrow for release of the Material unless the Licensee waives its right in writing within one month from the date of knowledge of a Release Event.

6.10

In the event a Release Event occurs, the Licensee shall be entitled to deliver the Material to its Group Companies (as required) for use [in accordance with clause of the [Development] Licence Agreement].

2.7	Confidentiality

The Material shall remain the confidential property of the Owner.

Subject to clause 7.3 NCC Escrow agrees to keep all information relating to the Material and/or the Package that comes into its possession or to its knowledge under this Agreement in strictest confidence and secrecy. NCC Escrow further agrees not to make use of such information and/or documentation other than for the purposes of this Agreement and will not disclose or release it other than in accordance with the terms of this Agreement, unless the parties should expressly agree otherwise in writing signed by the authorised signatories of all parties to this Agreement.

This clause shall not apply to any information relating to the Material which:

§	Is already in the public domain or which enters into the public domain other than by breach of this Agreement;

§	Is received by NCC Escrow from a third party free to disclose the same or which NCC Escrow can prove was already in its possession free from restriction.

2.8	Intellectual Property Rights

The release of the Material to the Licensee will not act as an assignment of any Intellectual Property Rights that the Owner or any third party possesses in the Material.

The Intellectual Property Rights in the Integrity Testing report and any Full Verification report shall remain vested in NCC Escrow. The Owner and the Licensee shall each be granted a non-exclusive non-transferable right and licence to use such report to [develop,] improve, modify or correct the Material and to give full effect to this Agreement and the [Development] [Licence] ▇▇▇▇▇▇▇▇▇.▇▇▇▇▇ Companies and other third parties shall be given a licence to use the Integrity Testing report and any Full Verification report to an equivalent extent that the [Development] [Licence] Agreement gives them the right to use the Material.

2.9	Integrity Testing and Full Verification

Subject to Clauses 9.2 and 9.3 below, NCC Escrow shall bear no obligation or responsibility to any party to this Agreement or person, firm, company or entity whatsoever to determine the existence, relevance, completeness, accuracy, operation, effectiveness, functionality or any other aspect of the Material received by NCC Escrow under this Agreement.

Upon each lodging of the Material with NCC Escrow, NCC Escrow shall apply its Integrity Testing to the Material.

Any party to this Agreement shall be entitled to require NCC Escrow to carry out a Full Verification. NCC Escrow’s prevailing fees and charges for the provision of the Full Verification, as set out in Schedule 2, shall be split equally between the Owner and the Licensee, save that if in the reasonable opinion of the Managing Director of NCC Escrow based on the relevant test report(s), the Material is defective or incomplete in content, NCC Escrow's fees charges and expenses in relation to the Full Verification shall be paid by the Owner.

Should the Material deposited fail to satisfy NCC Escrow's Integrity Testing or Full Verification tests under clauses 9.2 or 9.3, the Owner shall within 5 days of the receipt of the notice of test failure from NCC Escrow, deposit such new, corrected or revised Material as shall be necessary to ensure its compliance with its warranties and obligations in clause 2. If the Owner fails to make such deposit

of the new, corrected or revised Material, NCC Escrow will issue a report to the Licensee detailing the problem with the Material as revealed by the relevant tests and the Licensee shall be entitled to apply for release of the Material pursuant to clause 6.1.5 hereof

2.10	NCC Escrow's Liability

Nothing in this clause 10 excludes or limits the liability of NCC Escrow for fraudulent misrepresentation or for death or personal injury caused by NCC Escrow's negligence. Save as aforesaid the following provisions set out the entire financial liability of NCC Escrow (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the other parties:

NCC Escrow shall not be liable for any loss or damage caused to either the Owner or the Licensee either jointly or severally except to the extent that such loss or damage is caused by the negligent acts or omissions of or a breach of any contractual duty by NCC Escrow, its employees, agents or sub-contractors and in such event NCC Escrow's total liability in respect of any claim or series of connected claims arising under or by virtue of this Agreement or in connection with the performance or contemplated performance of this Agreement, shall not exceed the sum of £1,000,000.

NCC Escrow shall not be liable to the Owner and/or the Licensee for any indirect or consequential loss or damage whether for loss of profit, loss of business, depletion of goodwill or otherwise whatsoever or howsoever caused which arise out of or in connection with this Agreement even if such loss was reasonably foreseeable or NCC Escrow had been advised of the possibility of incurring the same by the Owner, the Licensee or any third party.

NCC Escrow shall be protected in acting upon any written request, waiver, consent, receipt, statutory declaration or any other document furnished to it pursuant to and in accordance with this Agreement, not only in assuming the authority of the person furnishing such document, its authenticity, due execution and validity and effectiveness of its provisions but also as to the truth of any information contained in it which NCC Escrow in good faith believes to be genuine and what it purports to be.

Save for any claim falling within the provisions of clause 10.1:

2.11

Indemnity

The Owner agrees to reimburse NCC Escrow on an indemnity basis all of its legal and all related costs incurred directly or indirectly as a result of being brought into or otherwise becoming involved in any form of dispute resolution proceedings or any litigation of any kind between the Owner and the Licensee in relation to this Agreement to the extent that this Agreement does not otherwise provide for reimbursement of such costs.

The Owner shall assume all liability and shall indemnify and keep indemnified both NCC Escrow and the Licensee and their officers, agents, sub-contractors and employees from and against any and all liability, loss, damages, costs, legal costs, professional and other expenses and any other liabilities of whatever nature, awarded against or agreed to be paid or otherwise suffered, incurred or sustained by NCC Escrow and the Licensee, whether direct, indirect or consequential as a result of or in connection with any claim by any third party(s) for alleged or actual infringement of Intellectual Property Rights arising out of or in connection with all and any dealings by NCC Escrow and the Licensee in respect of the Material as contemplated under this Agreement.

2.12	Termination

NCC Escrow may terminate this Agreement by notice in writing to the Owner and the Licensee after failure by the Owner or the Licensee to comply with a 30 day written notice from NCC Escrow to pay any outstanding fee set out in Schedule 2. If the failure to pay is on the part of the Owner, the Licensee shall be given formal notice pursuant to clause 13.4 hereof offering it the option of paying such fee itself which option shall expire 30 days after it is notified to the Licensee. Such amount will be recoverable by the Licensee direct from the Owner.

NCC Escrow may terminate this Agreement by giving 60 days written notice to the Owner and the Licensee. In that event the Owner and the Licensee shall appoint a mutually acceptable new custodian on similar terms and conditions to those contained herein. If a new custodian is not appointed within 60 days of delivery of such notice, the Licensee shall be entitled to request the President for the time being of the British Computer Society (or such other body replacing the same) to appoint a suitable new custodian upon terms and conditions which contain the same protections and benefits for the Licensee as set out in this Agreement. Such appointment shall be final and binding on all parties. NCC Escrow will forthwith deliver the Material to the new custodian.

The Licensee may terminate this Agreement at any time by giving written notice to NCC Escrow. Provided such notice is not given in the first year of the Agreement, NCC Escrow shall give a pro-rata refund of the annual fee paid in advance by the Owner and the Licensee in the proportions in which they paid the fee.

The Owner may only terminate this Agreement with the written consent of the Licensee.

This Agreement shall terminate upon release of the Material to the Licensee in accordance with clause 6.

Upon termination under the provisions of clauses 12.3 or 12.4, for 30 days from the date of termination NCC Escrow will make the Material available for

collection by the Owner from the premises of NCC Escrow during office hours. After such 30 day period NCC Escrow will destroy the Material.

For the avoidance of doubt, this Agreement may be terminated forthwith by mutual agreement of all parties hereto and upon such termination, unless otherwise agreed, NCC Escrow will return the Material to the Owner. Provided such termination does not take place in the first year of the Agreement, NCC Escrow shall give a pro-rata refund of the annual fee paid in advance by the Owner and the Licensee in the proportions in which they paid the fee.

The provisions of clauses 7 to 13 shall continue in full force after termination of this Agreement.

On termination of this Agreement the Owner and/or the Licensee (as appropriate) shall remain liable to NCC Escrow for payment in full of any fee which has become due but which has not been paid as at the date of termination.

15.5.10

The termination of this Agreement, however arising, shall be without prejudice to the rights accrued to the parties prior to termination.

2.13

General

The parties shall notify the other parties within 30 days of any change of names or any other material changes that may affect the validity or operation of this Agreement.

The formation, existence, construction, performance, validity and all aspects of this Agreement shall be governed by and construed in accordance with the laws of England and subject to clauses 6.5 to 6.8 the parties submit to the exclusive jurisdiction of the English courts.

This Agreement, the Schedules and the Appendix hereto, together with the [Development] [Licence] Agreement and any maintenance agreement (in respect of the Owner and Licensee only) represents the whole agreement relating to the escrow arrangements between the parties for the Package and shall supersede all prior agreements, discussions, arrangements, representations, negotiations and undertakings. In the event of any conflict between any of these documents, the terms of the [Development] [Licence] Agreement shall prevail as between the Owner and the Licensee

Any notice or other communication required or permitted to be given or made hereunder shall be validly given or made if delivered by hand or courier or if despatched by pre-paid, registered letter post addressed to the address specified on page 1 of this Agreement (or such other address as may be notified to the parties from time to time) or if sent by facsimile message to such facsimile number as has been notified to the parties from time to time and shall be deemed to be given or made:

(i) if delivered by hand or courier, at the time of delivery;

(ii) if sent by registered first class post, 2 business days after the same shall have been posted;

(iii)

if sent by facsimile, at the time of transmission of the facsimile transmission with facsimile machine confirmation of transmission to the correct facsimile number of all pages of the notice.

NCC Escrow shall be entitled to transfer or assign this Agreement on giving 60 days notice in writing to the Owner and the Licensee. Such notice shall specify the name of the proposed Transferee or Assignee. Should NCC Escrow’s Assignee or Transferee not be acceptable to either the Licensee or the Owner, a new escrow agent shall be appointed in accordance with the terms of clause 12.2

hereof.

Within 14 days of any assignment or transfer by the Owner of any part of its Intellectual Property Rights in the Material, the Owner shall notify NCC Escrow of such assignment or transfer and include within the notice the date on which the assignment or transfer took effect.

This Agreement shall be binding upon the successors and assigns of the parties provided always that nothing shall permit any assignment by any party except as expressly provided herein.

If any provision of this Agreement is declared illegal, invalid or unenforceable, or is too broad in any respect to permit enforcement to its full extent, the parties agree that such provision shall be enforced to the maximum extent permitted by law and that such provision shall be deemed to be varied accordingly. If any provision of this Agreement is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable, it shall, to the extent of such illegality, invalidity, voidability, unenforceability or unreasonableness, be deemed severable to that extent and the remaining part of the provision and the rest of the provisions of this Agreement shall continue in full force and effect.

Save as expressly provided in this Agreement, no amendment or variation of this Agreement shall be effective unless in writing and signed by a duly authorised representative of each of the parties to it.

15.5.10

In relation to assignment, transfer or sub-contracting of this Agreement by the Owner and/or the Licensee the provisions of [clause of the [ ] Agreement for the supply of Software and Services dated [ ] entered into between the Owner and Licensee shall apply].

15.5.11

Save for Group Companies (whose rights are set out in clause 6.10 hereof) this Agreement is not intended to create any right under the Contracts (Rights of Third Parties) ▇▇▇ ▇▇▇▇ which is enforceable by any person who is not a party to this Agreement and save for and Group Companies the rights of any third party under the said Act are hereby expressly excluded. Notwithstanding the foregoing, the parties may rescind or vary this Agreement without the consent of those Group Companies given the right of enforcement in this Clause 13.11.

15.5.12

No failure or delay by the Licensee in exercising any of its rights under this Agreement shall be deemed to be a waiver of that right save where this Agreement provides for express time limits to be met.

Signed for and on behalf of

Name: …………………………………………………………………… ¦ …………………………………………………………………………………………

Position: …………………………………………………………………… ¦ (Authorised Signatory)

Signed for and on behalf of VODAFONE GROUP

SERVICES LIMITED

Name: …………………………………………………………………… ¦ …………………………………………………………………………………………

Position: …………………………………………………………………… ¦ (Authorised Signatory)

Signed for and on behalf of NCC ESCROW INTERNATIONAL LIMITED

Name: …………………………………………………………………… ¦ …………………………………………………………………………………………

Position: …………………………………………………………………… ¦ (Authorised Signatory)

The software package known as [name] or any other name(s) as may be given to it by the Owner from time to time.

3. Schedule 1

4. The Package

Schedule 2

5. NCC Escrow's Fees

	DESCRIPTION	FEES	OWNER	LICENSE
1	Annual Fee (payable on completion of this Agreement and on each anniversary thereafter)
2	Scheduled Update Fee (2nd and subsequent scheduled deposits in any one year, payable on completion of this Agreement and on each anniversary thereafter) For development agreements Please note a minimum of 3 are required during the development of the Material in accordance with clause 2.1.4
3	Unscheduled Update Fee (per unscheduled deposit)
4	Release Fee (plus NCC Escrow's reasonable expenses)		100%
5	Integrity Testing Fee		100%
6	Full Verification Fee		100%

Additional fees will be payable to NCC Escrow by the Licensee (unless otherwise agreed between the parties) for the following where applicable:

·	Storage Fee for deposits in excess of 1 cubic foot;

·	Any novation of this Agreement at the request of the Owner or the Licensee;

·	Integrity Testing Fee for deposits consisting of more than 5 media items.

This service is included as part of the standard escrow package. The aim of Integrity testing is to ensure the integrity of the media deposit. This is achieved by carrying out the following checks on each media item received:

Schedule 3

The NCC Group

Verification Services

6. Integrity Testing

·	A Virus check is carried out on each media item where applicable.

·	The media is read to ensure that all data can be retrieved successfully

·	Any compressed files retrieved are checked to ensure that they can be decompressed successfully. If the compressed files are protected by passwords, the passwords shall be obtained if not already supplied. *

·	A check shall be made for any encrypted files that may have been retrieved. Any encrypted files located shall be deencrypted and the methods to deencrypt shall be noted (passwords etc)*.

·	A check shall be made to ensure that source code files have been retrieved. A number of source code files shall be viewed to ensure that they can be viewed in human readable form.

·	A check shall be made on the existence of features in the source code that aid readability (and thus understandability). Features searched for are modification histories, indentation, comments, meaningful variable and procedure names and meaningful filenames.

This final check is not a pass or fail issue, the check ascertains whether each feature is present.

If any of the first five checks fail then the software owner shall be asked to provide a replacement deposit which in turn shall be integrity tested.

On successful completion of the Integrity Test exercise, a brief report (average 4 pages) shall be produced which details the results of the above checks alongside an inventory of media items / documents received. The cover of the report details the escrow agreement number, software

owner, date of deposit and name and version of source code (as stated on the accompanying source code deposit form, completed by the software owner).

This level of verification does not include any building or testing of deposited material.

* The fact that passwords form part of the escrow deposit are noted but the passwords themselves are not revealed in the Integrity testing report.

7. Integrity Plus

The following is a schedule for a typical Integrity Plus exercise.

The software owner may prepare the source code deposit media prior to the Integrity Plus exercise taking place, although it is recommended that the exercise is completed before the media is prepared. Standard Integrity testing of the created media item is usually the final stage of the process. This ensures that all required materials (source code, batch files, documents, CAD drawings etc.,) are included on the deposit media. The following schedule assumes that all of the files required for placing on the escrow media are in place on appropriate hardware in a location that can be examined by the verification consultant.

The goal is to successfully complete the Integrity Plus exercise and for The NCC Group representative to retain the materials for lodgement in the Escrow Secure Deposit facility.

This schedule assumes that the exercise will be carried out with the full co-operation of a technical representative of the software owner to provide guidance in gathering the data required for the most complete escrow lodgement.

The proposed schedule is as follows:

·	Arrival at the verification site and introduction of participants

·	Opening Meeting

·	Explanation of Integrity Plus process

·	Brief Explanation of deposit to be lodged (source code, support files and documentation)

·	Agreement on the intended inventory of items to be handed over to NCC at the end of the process (i.e. the escrow deposit)

·	Questions and Answers Session (if necessary)

·	Explanation of Integrity Plus environment architecture (hardware & Operating Systems)

·	Explanation of the third party utilities and any batch files that would be required to build the application

·	Explanation of directories and contents to be placed on the escrow deposit media.

·	NCC will confirm the existence of source files on the verification hardware. Sample source files will be viewed using the most appropriate viewer / editor

·	NCC will ascertain the level of clarity of the source code (i.e. modification histories, comments, indentation, meaningful variable/procedure names and meaningful filenames)

·	NCC will ascertain that a sample source file can be edited to ensure they are not write-protected in any way

·	If a database is used by the application under test, and is being placed in Escrow, a plan / entity diagram or list of tables shall be supplied to NCC

·	NCC shall ascertain that a number of chosen tables exist as stated in the information provided and that the tables contain the fields as expected.

·	If applicable, any CAD drawings or similar design lodgment items will be viewed and details taken of the drawing names, drawing numbers and filenames. The amount of drawings checked will be determined by the total number of drawings lodged.

On successful completion of the exercise, an Integrity Plus Test Report shall be produced recording the checks made, result of those checks and any findings or recommendations.

·	If available, the Software Owner shall provide NCC with documentation to be included with the deposit that would assist the future maintenance of the source code being placed into Escrow. Details of the documentation (Titles, versions, dates and authors) will be noted.

·	The source code and all associated files shall be written to media for handing over to NCC for lodgment in Escrow

·	If applicable, and if available, a virus check shall be carried out on the media deposit

·	The contents of the media shall be read onto the verification hardware, ensuring that the media can be completely read without error

·	Check for passwords / encryption.

·	If passwords / encryption have been utilised in producing the escrow deposit, then the affected data / files shall be accessed using the password or decryption key provided by the licensor. The password or encryption key shall then be held as part of the Escrow deposit.

·	Check for compression. If compression has been utilised then the files / data shall be decompressed

·	A Source Code Deposit form will be completed by the software owner representative.

·	The media item shall be retained by NCC for placing in Escrow along with completed source code deposit form

·	Closing Meeting including summary of Integrity Plus exercise.

·	Transfer the deposit to secure escrow location.

8. Full Verification

This service is for those who wish to ensure that the deposit in escrow is as complete as possible and contains source code that is correct and complete and can be built into the application as expected by the client. The Full Verification exercise requires the assistance of the software owner and is carried out at their site. The main aims of the Full Verification exercise are:

·	to ensure that the source code can be built into a testable version of the application expected by the client;

·	that an escrow deposit is created containing all source code and associated files required during the Full Verification exercise as well as any other information required by a licensee should a release event ever occur; This deposit is Integrity Tested at the software owner’s site.

·	that a detailed report is produced of the steps carried out to build the application. The report is provided to all parties involved in the verification process and is also placed in escrow as part of the Fully Verified deposit;

The Full Verification exercise is made up of the following checks:

·	Opening Meeting in which the Full Verification process is explained, an explanation of software to be verified (functionality, modularity and technical issues) is given and agreement on the intended inventory of items to be handed over to NCC at the end of the process.

·	Explanation of verification architecture (hardware & Operating Systems)