Exhibit 10.32

EX-10.32 2 ex10_32.htm EXHIBIT 10.32 Exhibit 10.32

EXHIBIT 10.32

THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL TREATMENT REQUEST. REDACTED MATERIAL IS MARKED WITH [******] AND HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.

MASTER PROFESSIONAL SERVICES AGREEMENT

This Master Professional Services Agreement (this “Agreement”) is entered into effective January 15, 2007 (the “Effective Date”) by and between Hercules Incorporated, a Delaware corporation having a principal place of business at 1313 North Market Street, Wilmington, Delaware (“Hercules”), and Genpact International, a Luxembourg corporation acting through its Hungarian Branch, having a principal place of business in Duna Plaza Offices, 4th Floor, H-1138, Budapest Vaci ut 178, Hungary (“Supplier”).

WHEREAS, Hercules and Supplier have engaged in extensive negotiations, discussions and due diligence that have culminated in the formation of the contractual relationship described in this Agreement; and

WHEREAS, Hercules desires to procure from Supplier, and Supplier desires to provide to Hercules and the Eligible Recipients, certain finance, accounting, customer service, IT infrastructure, application development and maintenance and other business process and information technology products and services described in this Agreement and in the Companion Agreement(s) (defined below), on the terms and conditions specified herein;

NOW THEREFORE, in consideration of the mutual promises and covenants contained herein, and of other good and valid consideration, the receipt and sufficiency of which is hereby acknowledged, Hercules and Supplier (collectively, the “Parties” and each, a “Party”) hereby agree as follows:

1	INTRODUCTION

1.1 Performance and Management by Supplier.

Hercules desires that certain finance, accounting, customer service, SAP upgrade, application development and maintenance and other business process and information technology products and services (such descriptive terms herein collectively referenced as, “BPO/ADM”) presently performed and managed by or for Hercules and the Eligible Recipients, as each is described in this Agreement and the Schedules and Attachments hereto, be performed and managed by Supplier. Supplier has carefully reviewed Hercules' requirements, has performed (except as otherwise provided in Schedule J) all due diligence it deems necessary, and desires to perform and manage such business process products and services for Hercules and the Eligible Recipients.

1.2 Definitions.

Except as otherwise expressly provided in this Agreement, all capitalized terms used in this Agreement shall have the meanings set forth in Schedule A.

1.3 Other Terms

The terms defined in this Article 1 and Schedule A include the plural as well as the singular and the derivatives of such terms. Unless otherwise expressly stated, the words “herein,” “hereof,” and “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular Article, Section, Subsection or other subdivision. Article, Section, Subsection and Attachment references refer to articles, sections and subsections of, and attachments to, this Agreement. The words “include” and “including” shall not be construed as terms of limitation. The words “day,” “month,” and “year” mean, respectively, calendar day, calendar month and calendar year. As stated in Section 21.3, the word “notice” and “notification” and their derivatives means notice or notification in writing. Other terms used in this Agreement are defined in the context in which they are used and have the meanings there indicated.

2	CONTRACT DOCUMENTS

2.1 Associated Contract Documents.

This Agreement includes each of the following schedules and their attached exhibits, all of which are attached to this Agreement and incorporated into this Agreement by this reference. Unless otherwise expressly stated, references to specific Schedules include all numbered subsidiary Schedules and attachments (e.g., references to Schedule E include not only Schedule E, but also Schedules E.1, E.2, E.3 etc.).

Glossary of Terms

Software

Key Supplier Personnel

Subcontractors

Statement of Work

E.1

Global Procurement

E.2

Material Master

E.3

Accounts Payable

E.4

Order to Invoice

E.5

Invoice to Cash

E.6

General Accounting

E.7

Business Analysis

E.8

Sarbanes Oxley

E.9

Applications Development and Maintenance

E.10

Business Continuity

E.11

Savinon

E.12

SAP Upgrade

Reserved

Service Levels

G.1

Service Levels and Service Level Credits

G.2

Service Levels Definitions

G.3

Critical Deliverables and Deliverable Credits

Transition Plan

H.1

Transition Milestones, Criteria and Deliverable Credits

H.2

Detailed Transition Plan

Termination Assistance Services

Supplier Charges

J.1

Financial Responsibility/Asset Allocation Matrix

Hercules Base Case

Reserved

Staffing Plan

Termination Charges

O.1

Hercules Facilities

O.2

Supplier Facilities

O.3

Hercules Provided Equipment

P.1

Direct Hercules Competitors

P.2

Direct Supplier Competitors

Satisfaction Survey

Reports

Governance Model

T.1

Hercules Rules

T.2

Hercules IT, Security and Related Standards

T.3

Hercules Business Practices Policy

Termination/Expiration Rights

Exhibit 1: Form of Non-Disclosure Agreement

Exhibit 2: Form of Invoice

Exhibit 3: Form of Companion Agreement

Exhibit 4: Parent Guaranty

3 TERM

3.1 Initial Term.

The initial Term of this Agreement shall commence as of 12:00:01 a.m., Greenwich Mean Time on the Effective Date and continue until 11:59:59 p.m., Greenwich Mean Time, on December 31, 2012, unless this Agreement is terminated as provided herein or extended as provided in Section 3.2 or 4.3(a)(2), in which case the Term shall end at 11:59:59 p.m., Greenwich Mean Time, on the effective date of such termination or the date to which this Agreement is extended.

3.2 Extension.

By giving notice to Supplier no less than ninety (90) days prior to the expiration date of the initial Term or any extension period, Hercules shall have the right to extend the Term for up to two extension periods of up to one (1) year (each, a “Renewal Term” and together with the Initial Term, the “Term”), each on the same terms conditions and pricing set forth in this Agreement, including the economic change adjustment set forth in Section 7 of Schedule J. Notwithstanding the foregoing, the time period between the delivery of Hercules’ non-renewal notice to Supplier and Supplier’s cessation of Termination Assistance Services shall not be shorter than one hundred eighty (180) days. No Termination Charges shall be applicable to any termination on or after the expiration of the Initial Term, except as otherwise expressly provided in an approved New Services proposal.

4 SERVICES

4.1 Overview.

(a)

Services. Commencing on the Commencement Date (or, if later, the date on which Supplier assumes responsibility for the Services in question in accordance with the Transition Plan), Supplier shall provide the Services to Hercules, and, upon Hercules' request, to Eligible Recipients and Authorized Users designated by Hercules. The Services shall consist of the following, as they may evolve during the Term of this Agreement or be supplemented, enhanced, modified or replaced:

(i)

The services, functions and responsibilities described in this Agreement and its Schedules and attachments, which include the Technology and Business Process Evolution and the following:

(1)

Transition Services, as described in Sections 4.2 and Schedules H;

(2)

Services, as further described in Schedule E;

(3)

Projects, as further described in Section 4.5;

(4)

New Services, as further described in Section 4.4; and

(5)

Termination Assistance Services, as described in Section 4.3 and Schedule I.

(ii)

The BPO/ADM related services, functions and responsibilities performed during the twelve (12) months preceding the Commencement Date by Hercules Personnel who were displaced or whose functions were displaced as a result of this Agreement, even if the service, function, or responsibility is not specifically described in this Agreement (unless and to the extent such service, function, or responsibility meets the New Services definition, and provided that, in the event of a direct conflict between Schedule E and the scope of services as described in this Section 4.1(a)(ii), this Section 4.1(a)(ii) shall not be construed as altering and/or superseding Schedule E); and

(iii)

The BPO/ADM related services, functions and responsibilities reflected in those categories of the Hercules Base Case which Supplier is assuming pursuant to this Agreement (provided, however, in the event of a direct conflict between Schedule E and the scope of services as described in this Section 4.1(a)(iii), this Section 4.1(a)(iii) shall not be construed as altering and/or superseding Schedule E).

(b)

Included Services. If any services, functions or responsibilities not specifically described in this Agreement are an inherent, necessary or customary part of the Services or are required for proper performance or provision of the Services in accordance with this Agreement, they shall be deemed to be included within the scope of the Services to be delivered for the Charges, as if such services, functions or responsibilities were specifically described in this Agreement.

(c)

Required Resources. Except as otherwise expressly provided in this Agreement, Supplier shall be responsible for providing the facilities, personnel, Equipment, Software, technical knowledge, expertise and other resources necessary to provide the Services.

(d)

Supplier Responsibility. Supplier shall be responsible for the provision of the Services in accordance with this Agreement even if such Services are actually performed or dependent upon services performed by Subcontractors.

(e)

Electronic Delivery. To the maximum extent possible, and except as otherwise directed by Hercules or expressly provided in this Agreement, Supplier shall deliver all Software, documentation, reports and other contract deliverables to Hercules and the Eligible Recipients at the designated Hercules Site by electronic transmission or by load and leave (where no tangible storage media is physically transferred to Hercules or the Eligible Recipients).

4.2 Transition Services.

(a)

Transition. During the Transition Period, Supplier shall perform the Transition Services and provide the deliverables described in the Transition Plan, which is attached to this Agreement as Schedule H. If any services, functions or responsibilities not specifically described in the Transition Plan are an inherent, necessary or customary part of the Transition Services or are required for the proper performance of the Transition Services in accordance with this Agreement, they shall be deemed to be included within the scope of the Transition Services to be delivered for no additional charge, as if such services, functions or responsibilities were specifically described in the Transition Plan. During the Transition Period, Hercules will perform those tasks which are designated to be Hercules' responsibility in the Transition Plan, provided that, Hercules shall not be obligated to perform any tasks during the Transition Period that are not set forth in such Transition Plan. Unless otherwise agreed, Hercules shall not incur any charges, fees or expenses payable to Supplier or third parties in connection with the Transition Services, other than those charges, fees and expenses specified in Schedule J and those incurred by Hercules in connection with its performance of tasks designated in the Transition Plan as Hercules' responsibility.

(b)

Transition Plan. Schedule H.1 is an outline of the Transition Plan that identifies (i) the transition activities to be performed by Supplier, (ii) the date(s) by which each such activity or deliverable is to be completed (“Transition Milestones”), and (iii) the Deliverable Credits associated with the failure to meet specific Transition Milestones. Within thirty (30) days after the Effective Date, Supplier shall deliver to Hercules a detailed Transition Plan for Hercules' review, comment and approval. The proposed detailed Transition Plan shall describe in greater detail the specific transition activities to be performed by Supplier, but, unless otherwise agreed by Hercules, shall be consistent in all material respects with the initial Transition Plan, including the activities, deliverables, Transition Milestones and Deliverable Credits described therein. The detailed Transition Plan shall identify and describe, among other things, (i) the transition activities to be performed by Supplier and the significant components and subcomponents of each such activity, (ii) the deliverables to be completed by Supplier, (iii) the Transition Milestone for each such activity or deliverable, (iv) a process and set of standards acceptable to Hercules to which Supplier will adhere in the performance of the Transition Services and that will enable Hercules to determine whether Supplier has successfully completed the transition and the activities and deliverables associated with each Transition Milestone, in

accordance with the Acceptance criteria specified in the Transition Plan, (v) the contingency or risk mitigation strategies to be employed by Supplier in the event of disruption or delay, (vi) any transition responsibilities to be performed or transition resources to be provided by Hercules or the Eligible Recipients and (vii) a detailed work plan identifying the specific transition activities to be performed by individual Supplier Personnel on a weekly basis during the Transition Period. The detailed Transition Plan also shall identify any related documents contemplated by the Agreement and/or required to effectuate the transition to be executed by the Parties. Upon approval by Hercules, the detailed Transition Plan shall be appended to the Agreement as Schedule H.2.

(c)

Performance. Supplier shall perform the Transition Services described in the Transition Plan in accordance with the timetable and the Transition Milestones set forth in the Transition Plan. Supplier shall provide all cooperation and assistance reasonably required or requested by Hercules in connection with Hercules' evaluation or testing of the deliverables set forth in the Transition Plan. Supplier shall perform the Transition Services in a manner that will not (i) unnecessarily disrupt or have an unnecessary adverse impact on the business or operations of Hercules or the Eligible Recipients, (ii) degrade the Services then being received by Hercules or the Eligible Recipients, or (iii) disrupt or interfere with the ability of Hercules or the Eligible Recipients to obtain the full benefit of the Services, except as may be otherwise provided in the Transition Plan. Prior to undertaking any transition activity, Supplier shall discuss with Hercules all known Hercules-specific material risks and shall not proceed with such activity until Hercules is reasonably satisfied with the plans with regard to such risks (provided that, neither Supplier’s disclosure of any such risks to Hercules, nor Hercules' acquiescence to Supplier’s plans, shall operate or be construed as limiting Supplier’s responsibilities under this Agreement). Supplier shall identify and resolve, with Hercules' reasonable assistance, any problems that may impede or delay the timely completion of each task in the Transition Plan that is Supplier’s responsibility and shall use all commercially reasonable efforts to assist Hercules with the resolution of any problems that may impede or delay the timely completion of each task in the Transition Plan that is Hercules' responsibility.

(d)

Meetings; Reports. Supplier shall meet at least weekly with Hercules to report on its progress in performing its responsibilities and meeting the timetable set forth in the Transition Plan. Supplier shall include Supplier Personnel in such meetings as and to the extent appropriate or requested by Hercules. Supplier also shall provide written reports to Hercules at least weekly regarding such matters, and shall provide oral reports more frequently if reasonably requested by Hercules. Promptly upon receiving any information indicating that Supplier may not perform its responsibilities or meet the timetable set forth in the Transition Plan, Supplier shall notify Hercules in writing of material delays and shall identify for Hercules' consideration and approval specific measures to address such delay and mitigate the risks associated therewith.

(e)

Suspension or Delay of Transition Activities. Hercules reserves the right, in its sole discretion, to suspend or delay the performance of the Transition Services and/or the transition of all or any part of the Transition Services. If Hercules elects to exercise such right and Hercules' decision is based on Supplier’s failure to perform its obligations under this Agreement, Hercules shall not incur any additional Charges, Termination Charges, or reimbursable expenses in connection with such decision. If Hercules' decision is not based on Supplier’s failure to perform its obligations under this Agreement, Hercules shall reimburse Supplier for any additional costs reasonably incurred by Supplier as a result of such decision (provided that Supplier notifies Hercules in advance of such costs, obtains Hercules' approval prior to incurring such costs, and uses commercially reasonable efforts to minimize such costs).

(f)

Failure to Meet Transition Milestones.

(i)

The Parties acknowledge and agree that the Transition Plan specifies various Transition Milestones by which Transition activities and/or deliverables are to be completed. If Supplier fails to meet a Transition Milestone, Supplier shall pay Hercules the Deliverable Credits specified in Schedules G and H for such Transition Milestone.

(ii)

Neither the Transition Services nor the activities and deliverables associated with individual Transition Milestones will be deemed complete until Hercules' Acceptance of such activities and deliverables.

(g)

Termination for Cause. Notwithstanding the foregoing, and in addition to any other termination right Hercules may have under this Agreement, Hercules may terminate this Agreement in whole or in part for cause if (i) Supplier fails to comply with its material obligations with respect to the provision of Transition Services and such failure causes or will cause a material disruption to or otherwise has or will have a material adverse impact on the operations or businesses of Hercules or the Eligible Recipients, (ii) Supplier materially breaches its obligations with respect to the provision of Transition Services and fails to cure such breach within twenty (20) days after its receipt of notice, or (iii) Supplier fails to meet a Transition Milestone and such failure constitutes a material breach of this Agreement and Supplier fails to cure such breach within twenty (20) days after its receipt of notice. In addition, unless otherwise agreed, if Supplier fails to meet the Transition Milestone for the completion of the transition of all Services to Supplier by more than twenty (20) days, Hercules may terminate this Agreement for cause without requirement of notice or opportunity to cure. In all such events, subject to Section 18.3, Hercules may recover the damages suffered by Hercules or the Eligible Recipients in connection with such a termination, provided that, if such termination is based on Supplier’s failure to meet a Transition Milestone, Supplier shall be entitled to set-off against such damages any Deliverable Credits Supplier has paid for the failure to meet such Transition Milestone.

4.3 Termination Assistance Services.

(a)

Availability. As part of the Services, and for the Charges set forth in Sections 4.3(b)(8) and 4.3(b)(9) and Schedule J, Supplier shall provide to Hercules, the Eligible Recipients and/or their designee(s) the Termination Assistance Services described in Section 4.3(b) and Schedule I.

(1)

Period of Provision. Supplier shall provide such Termination Assistance Services to Hercules and any Eligible Recipient, or their designee(s), (i) commencing upon notice from Hercules up to six (6) months prior to the expiration of the Term or on such earlier date as Hercules may request and continuing for up to twelve (12) months following the effective date of the expiration of the Term (as such Term may be extended pursuant to Section 3.2), (ii) commencing upon any notice of termination (including termination for cause by Hercules or Supplier or termination for convenience by Hercules) of the Term with respect to all or any part of the Services, and continuing for up to twelve (12) months following the effective date of such termination of all or part of the Services, or (iii) commencing upon notice of termination of all or part of the Services to an Eligible Recipient and continuing for up to twelve (12) months following the effective date of such termination.

(2)

Extension of Services. Hercules may elect, upon thirty (30) days prior notice, to extend the period following the effective date of any expiration/termination for the performance of Termination Assistance Services, provided that the period between the effective date and the completion of all Termination Assistance Services is not greater than twelve (12) months. If Hercules provides less than thirty (30) days prior notice of an extension, Supplier shall nonetheless use commercially reasonable efforts to comply with Hercules' request and provide the requested Services and/or Termination Assistance Services.

(3)

Firm Commitment. Supplier shall provide Termination Assistance Services to Hercules and any Eligible Recipients, or their designee(s), regardless of the reason for the expiration or termination of the Term; provided, if the Agreement is terminated by Supplier under Section 20.1(b) for failure to pay undisputed amounts, Supplier may require payment in advance for Termination Assistance Services to be provided or performed under this Section 4.3 and payment of all undisputed Charges not previously paid as required under this Agreement. At Hercules' request, Supplier shall provide

Termination Assistance Services directly to an Eligible Recipient or an Entity acquiring Control of an Eligible Recipient; provided that, unless otherwise agreed by the Parties, all such Termination Assistance Services shall be performed subject to and in accordance with the terms and conditions of this Agreement.

(4)

Performance. All Termination Assistance Services shall be provided subject to and in accordance with the terms and conditions of this Agreement. Supplier shall perform the Termination Assistance Services with at least the same degree of accuracy, quality, completeness, timeliness, responsiveness and resource efficiency as it provided and was required to provide the same or similar Services during the Term. The quality and level of performance of the Termination Assistance Services provided by Supplier following the expiration or termination of the Term as to all or part of the Services or Supplier’s receipt of a notice of termination or non-renewal shall continue to meet or exceed the applicable Service Levels and shall not be degraded or deficient in any respect. Accordingly, unless otherwise agreed in the applicable transition plan, Service Level Credits shall be assessed for any failure to meet applicable Service Levels during the Termination Assistance Services period; provided, that, during the period following the expiration/termination date, (i) Service Level Credits shall be assessed only with respect to a failure to meet the applicable Minimum Service Level, (ii) the Parties shall use commercially reasonable efforts to agree upon the Minimum Service Levels to be applied during such period, and (iii) to the extent the Parties are unable to agree, the original Minimum Service Level, without the continuous improvement adjustments described in Section 12 of Schedule G, shall be applied. Notwithstanding the foregoing, if Hercules requests less than all of the Services being performed by Supplier prior to the expiration/termination date and the failure to request any interdependent Service causes Supplier to be unable to perform the Services in accordance with the Service Levels, Supplier shall be relieved of responsibility for any resulting Service Level default, but only if Supplier (i) promptly notifies Hercules of its inability to perform under such circumstances, (ii) cooperates with Hercules to address the resulting problem and thereby avoid any non-performance, (iii) identifies and pursues commercially reasonable means to avoid or mitigate the impact of Hercules’ failure to request such Service, and (iv) uses commercially reasonable efforts to perform notwithstanding the failure to request such Service. Supplier Personnel (including all Key Supplier Personnel) reasonably considered by Hercules to be critical to the performance of the Services and Termination Assistance Services shall be retained on the Hercules account through the completion of all relevant Termination Assistance Services.

(5)

Advance Payment. If Hercules is obligated to pay in advance for Termination Assistance Services, Supplier shall present an invoice for the estimated Charges for such Termination Assistance Services at least fifteen (15) days prior to the beginning of the month in which such Services are to be provided. Subject to Section 12.4, Hercules shall then pay such Charges on or before the first day of such month. The estimated Charges shall then be reconciled with the actual Charges for Termination Assistance Services provided in such month, and any additional Charges or credits will be reflected on the next invoice delivered after the end of such month.

(b)

Scope of Termination Assistance Service. As part of the Termination Assistance Services, Supplier shall timely transfer the control and responsibility for all Services previously performed by or for Supplier to Hercules, the Eligible Recipients and/or their designee(s) and shall execute any documents reasonably necessary to effect such transfers. Additionally, Supplier shall provide any and all information and assistance requested by Hercules to allow:

(i)

the Systems and processes associated with the Services to operate efficiently;

(ii)

the Services to continue without interruption or adverse effect; and

(iii)

the orderly transfer of the Services to Hercules, the Eligible Recipients and/or their designee(s).

The Termination Assistance Services shall include, as requested by Hercules, the Services, functions and responsibilities set forth on Schedule I. In addition, in connection with such termination or expiration, Supplier shall provide the following assistance and Services at Hercules' direction:

(1)

General Support. Supplier shall (i) assist Hercules, an Eligible Recipient and/or their designee(s) in developing a written transition plan for the transition of the Services to Hercules, such Eligible Recipient, or their designee(s), which plan shall include (as requested by Hercules) capacity planning, business process planning, facilities planning, human resources planning, technology planning, telecommunications planning and other planning necessary to effect the transition, (ii) perform programming and consulting services as requested to assist in implementing the transition plan, (iii) train personnel designated by Hercules, an Eligible Recipient or their designee(s) in the use of any business processes, work instructions and work procedures and any Equipment, Software, Systems, Materials and tools used in connection with the provision of the Services, (iv) catalog all business processes, work instructions, work procedures, Software, Hercules Data, Equipment, Materials, Third Party Contracts and tools used to provide the Services, (v) provide machine readable and printed listings and associated documentation for source code for Software owned by Hercules and source code to which Hercules is entitled under this Agreement and assist in its re-configuration, (vi) analyze and report on the space required for the Hercules Data and the Software needed to provide the Services, (vii) assist in the execution of a parallel operation, data migration and testing process until the successful completion of the transition to Hercules, an Eligible Recipient or their designee(s), (viii) create and provide copies of the Hercules Data in the format and on the media reasonably requested by Hercules, an Eligible Recipient or their designee(s), (ix) provide a complete and up-to-date, electronic copy of the Policy and Procedures Manual and applicable work instructions and work procedures in the format and on the media reasonably requested by Hercules, an Eligible Recipient or their designee(s) and (x) provide other technical assistance as requested by Hercules, an Eligible Recipient or their designee(s).

(2)

Hiring.

(i)

Hercules, the Eligible Recipients and/or their designee(s) shall be permitted to undertake, without interference from Supplier, Supplier Subcontractors (subject to Section 4.3(b)(2)(ii) below) or Supplier Affiliates (including counter-offers), to make offers of employment, effective after the later of the expiration or termination of the Term or completion of any Termination Assistance Services requested under Section 4.3(b)(8), to any (i) Supplier Personnel assigned to the performance of Services at Hercules Facility(ies) during the twelve (12) months preceding the expiration or termination date, or (ii) other Supplier Personnel assigned to the performance of Services during the twelve (12) months preceding the expiration or termination date that Supplier intends to terminate in connection with such expiration or termination. Supplier shall waive, and shall cause its Subcontractors (as contemplated in Section 4.3(b)(2)(ii) below) and Affiliates to waive, their rights, if any, under contracts with such personnel restricting the ability of such personnel to be recruited or hired by Hercules, the Eligible Recipients and/or their designee(s). Supplier shall provide Hercules, the Eligible Recipients and/or their designee(s) with reasonable assistance in their efforts to hire such Supplier Personnel, and shall give Hercules, the Eligible Recipients and/or their designee(s) reasonable access to such Supplier Personnel for interviews, evaluations and recruitment. Hercules shall endeavor to conduct the above-described hiring activity in a manner that is not unnecessarily disruptive of the performance by Supplier of its obligations under this Agreement.

(ii)

With respect to Subcontractors that are not Supplier Affiliates, Supplier shall use all commercially reasonable efforts to (A) obtain for Hercules, the Eligible Recipients and their designee(s) the rights specified in Section 4.3(b)(2)(i), and (B) ensure that such rights are not subject to subsequent Subcontractor approval or the payment by Hercules, an Eligible Recipient or their designee(s) of any fees. If Supplier is unable to obtain any such

rights with respect to a Subcontractor, it shall notify Hercules in advance and shall not use such Subcontractor without Hercules' approval (and absent such approval, Supplier’s use of any such Subcontractor shall obligate Supplier to obtain or arrange, at no additional cost to Hercules, the rights specified in Section 4.3(b)(2)(i), for Hercules, the Eligible Recipients and their designee(s) upon expiration or termination). If Hercules consents to Supplier’s use of specific Subcontractors under these circumstances, such Subcontractors shall be so identified on Schedule D

(iii)

Within thirty (30) days after receiving from Hercules pursuant to Section 4.3(a)(1), Supplier shall provide to Hercules a list, organized by location, of the Supplier Personnel who are eligible for solicitation for employment pursuant to this Section 4.3(b)(2), including those Supplier intends to terminate in connection with such expiration or termination. Subject to applicable Privacy Laws, such list shall specify each such Supplier Personnel's job title, annual total compensation, leave status and years of service.

(3)

Software. As provided in Section 14.6, and subject to Section 6.4(c), Supplier shall provide, and hereby grants to Hercules (with a right to sublicense to the Eligible Recipients and/or Hercules' designee), certain license, sublicense and/or other rights to certain Software and other Materials used by Supplier, Supplier Affiliates or Subcontractors in performing the Services.

(4)

Equipment. Subject to Section 6.4(c), Hercules, the Eligible Recipients and/or their designee(s) shall have the right (but not the obligation) to purchase, or assume the lease for, any Equipment owned or leased by Supplier that is used on a dedicated basis by Supplier or Supplier Affiliates to perform the Services. Such Equipment shall be transferred in good working condition, reasonable wear and tear excepted, as of the expiration or termination date or the completion of any Services requiring such Equipment requested by Hercules under Section 4.3(b)(8), whichever is later. Supplier shall, at no additional charge to Hercules, maintain such Equipment through the date of transfer so as to be eligible for the applicable manufacturer’s maintenance program at no additional charge to Hercules. In the case of Supplier-owned Equipment, Supplier shall grant to Hercules, the Eligible Recipients and/or their designee(s) a warranty of title and a warranty that such Equipment is free and clear of all liens and encumbrances. Such conveyance by Supplier to Hercules, the Eligible Recipients and/or their designee(s) shall be at net book value (calculated in accordance with generally acceptable accounting principles applicable in the country in which such Equipment is located). Unless otherwise agreed, Hercules shall pay any sales tax and/or duties associated with such conveyance, as well as any Out-of-Pocket Expenses to transport such Equipment to the location designated by Hercules. At Hercules' request, the Parties shall negotiate in good faith and agree upon the form and structure of the purchase. In the case of leased Equipment, Supplier shall (i) represent and warrant that the lessee is not in default under the lease, (ii) represent and warrant that all payments thereunder have been made through the date of transfer, and (iii) notify Hercules of any lessor defaults of which it is aware at the time.

(5)

Hercules Facilities, Equipment and Software. Supplier shall vacate the Hercules Facilities and return to Hercules, if not previously returned, any Hercules owned Equipment, Hercules leased Equipment, Hercules Owned Software, Hercules licensed Software and Hercules Owned Materials, in condition at least as good as the condition when made available to Supplier, ordinary wear and tear excepted. Such Hercules Facilities, Equipment, Software and Materials shall be vacated and returned at the expiration or termination date or the completion of any Services requiring such Hercules Facilities, Equipment, Software and Materials requested by Hercules under Section 4.3(b)(8), whichever is later.

(6)

Supplier Subcontracts and Third Party Contracts. Supplier shall inform Hercules of all subcontracts or Third Party Contracts primarily used by Supplier, Supplier Subcontractors or Supplier Affiliates to perform the Services. Subject to Sections 6.4(c), Supplier shall, at Hercules’s request, cause any such Subcontractors (excluding Shared Subcontractors), Supplier Affiliates or third party contractors to permit Hercules, the Eligible Recipients and/or their designee(s) to assume prospectively any or all such contracts or to enter into new contracts with Hercules, the Eligible

Recipients or their designees on substantially the same terms and conditions, including price. Supplier shall so assign the designated subcontracts and Third Party Contracts to Hercules, the Eligible Recipients and/or their designee(s) as of the expiration or termination date or the completion of any Termination Assistance Services requiring such subcontracts or Third Party Contracts requested by Hercules under Section 4.3(b)(8), whichever is later. There shall be no charge or fee imposed on Hercules, the Eligible Recipients and/or their designee(s) by Supplier or its Subcontractors, Affiliates or third party contractors for such assignment. Supplier shall (i) represent and warrant that it is not in default under such subcontracts and Third Party Contracts, (ii) represent and warrant that all payments thereunder through the date of assignment are current, and (iii) notify Hercules of any Subcontractor’s or third party contractor’s default with respect to such subcontracts and Third Party Contracts of which it is aware at the time.

(7)

Other Subcontracts and Third Party Contracts. In addition to its obligations under Section 4.3(b)(6), Supplier shall use commercially reasonable efforts to make available to Hercules, the Eligible Recipients and/or their designee(s), pursuant to reasonable terms and conditions, any Subcontractor or third party services then being utilized by Supplier in the performance of the Services. Supplier shall retain the right to utilize any such Subcontractor or third party services in connection with the performance of services for any other Supplier customer. Hercules and the Eligible Recipients shall retain the right to contract directly with any Subcontractor or third party previously utilized by Supplier to perform any Services.

(8)

Extension of Services. As part of the Termination Assistance Services, for a period of up to twelve (12) months following the expiration or termination date, Supplier shall provide to the Eligible Recipient(s), under the terms and conditions of this Agreement, at Hercules' request, any or all of the Services being performed by Supplier prior to the expiration or termination date, including those Services described in Article 4 and Schedule E. To the extent Hercules requests such Services, Hercules will pay Supplier the Charges specified in Schedule J that Hercules would have been obligated to pay Supplier for such Services if this Agreement had not yet expired or been terminated. To the extent Hercules requests a portion (but not all) of the Services included in a particular Charge, the amount to be paid by Hercules will be equitably adjusted in proportion to the portion of the Services included in the applicable Charge that Supplier will not be providing or performing.

(9)

Rates and Charges. Except as provided below and in Section 4.3(b)(8), the Parties anticipate that the Termination Assistance Services requested by Hercules will be provided by Supplier, at no additional charge to Hercules, using Supplier Personnel already assigned to Hercules and without adversely affecting Supplier’s ability to meet its performance obligations. If material Termination Assistance Services requested by Hercules cannot be provided by Supplier using Supplier Personnel then assigned to Hercules without adversely affecting Supplier’s ability to meet its performance obligations, Hercules, in its sole discretion, may forego or delay any work activities or temporarily or permanently adjust the work to be performed by Supplier, the schedules associated therewith or the Service Levels to permit the performance of such Termination Assistance Services using such personnel. To the extent Hercules authorizes Supplier to use additional Supplier Personnel to perform material Termination Assistance Services requested by Hercules, Hercules shall pay Supplier the rates and charges specified in Schedule J, or, if no such rates and charges are specified in Schedule J, a negotiated fee which shall be no less favorable to Hercules than the lower of the most favorable rates available under then-current Hercules/Supplier contracts for comparable services or Supplier’s then current commercially available rates, for the additional Supplier Personnel required to perform such Termination Assistance Services (but only if Supplier notifies Hercules in advance of such Charges, obtains Hercules' approval prior to incurring such Charges, and uses commercially reasonable efforts to minimize such Charges).

(c)

Resources. Supplier shall ensure that, at all times during the Term, on thirty (30) days notice, it is able to deploy all necessary resources to perform Termination Assistance Services in accordance with this Section 4.3.

(d)

Survival of Terms. This Section 4.3 shall survive termination/expiration of the Term.

4.4 New Services.

(a)

Procedures. If Hercules requests that Supplier perform any New Services reasonably related to the Services or other services generally provided by Supplier, Supplier shall promptly prepare a New Services proposal for Hercules' consideration. Unless otherwise agreed by the Parties, Supplier shall prepare such New Services proposal at no additional charge to Hercules and shall deliver such proposal to Hercules within ten (10) business days of its receipt of Hercules' request; provided, that Supplier shall use all commercially reasonable efforts to respond more quickly in the case of a pressing business need or an emergency situation. Hercules shall provide such information as Supplier reasonably requests in order to prepare such New Service proposal. Such New Services proposal shall include, among other things, the following at a level of detail sufficient to permit Hercules to make an informed business decision: (i) a project plan and fixed price or price estimate for the New Service; (ii) a breakdown of such price or estimate, (iii) a description of the service levels to be associated with such New Service, (iv) a schedule for commencing and completing the New Service, (v) a description of the new hardware or software to be provided by Supplier in connection with the New Service, (vi) a description of the software, hardware and other resources, including Resource Unit utilization, necessary to provide the New Service, (vii) any additional facilities or labor resources to be provided by Hercules or the Eligible Recipients in connection with the proposed New Service, (viii) any risks associated with the New Service and/or the integration of the New Service into the existing environment, and (ix) in the case of any Developed Materials to be created through the provision of the proposed New Services, any ownership rights therein that differ from the provisions of Section 14.2. Hercules may accept or reject any New Services proposal in its sole discretion and Supplier shall not be obligated to perform any New Services to the extent the applicable proposal is rejected. Unless the Parties otherwise agree, if Hercules accepts Supplier’s proposal, Supplier will perform the New Services and be paid in accordance with the proposal submitted by Supplier and the provisions of this Agreement. Upon Hercules' acceptance of a Supplier proposal for New Services, the scope of the Services will be expanded and this Agreement will be modified to include such New Services. Notwithstanding any provision to the contrary, (i) Supplier shall act reasonably and in good faith in formulating such pricing proposal, (ii) Supplier shall use commercially reasonable efforts to identify potential means of reducing the cost to Hercules, including utilizing Subcontractors as and to the extent appropriate, (iii) such pricing proposal shall be no less favorable to Hercules than the pricing and labor rates set forth herein for the same or substantially similar job classifications and/or skill sets in the same geographic area and the same or substantially similar technology infrastructure, and (iv) such pricing proposal shall take into account the existing and future volume of business between Hercules and Supplier.

(b)

Use of Third Parties. Hercules may elect to solicit and receive bids from third parties to perform any New Services. If Hercules elects to use third parties to perform New Services, (i) such New Services shall not be deemed “Services” under the provisions of this Agreement, and (ii) Supplier shall cooperate with such third parties as provided in Section 4.6.

(c)

Services Evolution and Modification. The Parties anticipate that the Services will evolve and be supplemented, modified, enhanced or replaced over time to keep pace with technological advancements and improvements in the methods of delivering Services and changes in the businesses of Hercules and the Eligible Recipients. The Parties acknowledge and agree that these changes will modify the Services and will not be deemed to result in New Services unless the changed services meet the definition of New Services.

(d)

Authorized User and Eligible Recipient Requests. Supplier shall promptly inform the Hercules Relationship Manager or his or her designee of requests for New Services from Authorized Users or Eligible Recipients, and shall submit any proposals for New Services to the Hercules Relationship Manager or his or her designee. Supplier shall not agree to provide New Services to any Authorized Users or Eligible Recipients without the prior written approval of the Hercules Relationship Manager or his or her designee.

(e)

Efforts to Reduce Costs and Charges. From time to time, Hercules may request that the Parties work together to identify ways to achieve reductions in the cost of service delivery and corresponding reductions in the Charges to be paid by Hercules by modifying or reducing the nature or scope of the Services to be

performed by Supplier, the applicable Service Levels or other contract requirements. If requested by Hercules, Supplier shall promptly prepare a proposal at a level of detail sufficient to permit Hercules to make an informed business decision identifying all viable means of achieving the desired reductions without adversely impacting business objectives or requirements identified by Hercules. In preparing such a proposal, Supplier shall give due consideration to any means of achieving such reductions proposed by Hercules. Supplier shall negotiate in good faith with Hercules about each requested reduction in Charges and, without disclosing the actual cost of providing the Services, shall identify for Hercules if and to what extent the cost of service delivery may be reduced by implementing various changes in the contract requirements. Hercules shall not be obligated to accept or implement any proposal; and Supplier shall not be obligated to implement any change that affects the terms of this Agreement unless and until such change is reflected in a written amendment to this Agreement.

4.5 Billable Projects.

(a)

Procedures and Performance. Supplier shall perform Projects requested and approved by Hercules as part of the Services. A “Project” is a discrete unit of non-recurring work that is not an inherent, necessary or customary part of the day-to-day Services, and is not required to be performed by Supplier to meet the existing Service Levels (other than Service Levels related to Project performance). A Project may consist of or include work that would otherwise be treated as New Services. The Supplier Personnel assigned to perform such Projects shall possess the training, education, experience, competence and skill to perform such work. The Hercules Relationship Manager or his or her designee shall request, define and set the priority for such Projects.

(b)

Additional Work or Reprioritization. The Hercules Project Executive or his or her designee may identify new or additional work activities to be performed by Supplier Personnel (including work activities that would otherwise be treated as a Project or New Services) or reprioritize or reset the schedule for existing work activities to be performed by such Supplier Personnel. To the extent the work activities requested by Hercules can be provided by Supplier using personnel already assigned to Hercules without impacting the established schedule for other tasks or the performance of the Services in accordance with the Service Levels, there will be no additional charge to Hercules for such work. If the work activities requested by Hercules cannot be provided by Supplier using personnel then assigned to Hercules without impacting the Service Levels, Hercules, in its sole discretion, may forego or delay any work activities or temporarily or permanently adjust the work to be performed by Supplier, the schedules associated therewith or the Service Levels to permit the performance of such work using personnel already assigned to perform the Services.

4.6 Right to In-Source or Use Third Parties; Cooperation.

(a)

Right of Use. Subject to Section 2.7 of Schedule J, this Agreement shall not be construed as a requirements contract, and notwithstanding anything to the contrary contained herein, shall not be interpreted to prevent Hercules or the Eligible Recipients from obtaining from third parties (each, a “Hercules Third Party Contractor”), or providing to themselves, any or all of the Services or any other services. In addition, subject to Section 2.7 of Schedule J, nothing in this Agreement shall be construed or interpreted as limiting Hercules' right or ability during the Term to add or delete Eligible Recipients or to increase or decrease its demand for Services. Nor shall anything in this Agreement be construed or interpreted as limiting Hercules' right or ability during the Term to change the requirements of Hercules or the Eligible Recipients with respect to any Service, change Service volumes and/or, subject to Section 2.7 of Schedule J, move parts of any Service in or out of scope. To the extent Hercules or an Eligible Recipient obtains from a Hercules Third Party Contractor, or provides to itself, any of the Services, the amount to be paid to Supplier by Hercules shall be equitably adjusted downward in accordance with Schedule J and in proportion to the portion of the Services that Supplier will no longer be providing or performing. Similarly, to the extent Hercules adds or deletes Eligible Recipients or increases or decreases its demand for Services, the amount to be paid to Supplier by Hercules shall be adjusted in accordance with Schedule J and the rates specified therein.

(b)

Supplier Cooperation. Supplier shall fully cooperate with and work in good faith with Hercules, the Eligible Recipients or Hercules Third Party Contractors as described in Schedule E or requested by Hercules and at no additional charge to Hercules. Such cooperation may include: (A) timely providing access to any

facilities being used to provide the Services, as necessary for Hercules personnel or Hercules Third Party Contractors to perform the work assigned to them (including to install and manage third party software and equipment to provide services to Hercules or Eligible Recipients); (B) timely providing reasonable electronic and physical access to the business processes and associated Equipment, Software and/or Systems to the extent necessary and appropriate for Hercules, the Eligible Recipients or Hercules Third Party Contractors to perform the work assigned to them; (C) timely providing written requirements, standards, policies or other documentation for the business processes and associated Equipment, Software or Systems procured, operated, supported or used by Supplier in connection with the Services; (D) ensuring that there is no degradation in the provision of the Services caused by the adjustments made by Supplier in transferring Services to a third party, Hercules or an Eligible Recipient; (E) at Hercules' request, providing access to Hercules Data to the Eligible Recipients and/or Hercules Third Party Contractors in the same manner and to the same extent access to such data is provided to Hercules, (F) timely providing cooperation and assistance in accordance with Section 4.3 to facilitate the orderly transfer of terminated Services from Supplier to Hercules, the Eligible Recipients and/or Hercules Third Party Contractors or (G) any other cooperation or assistance reasonably necessary for Hercules, the Eligible Recipients and/or Hercules Third Party Contractors to perform the work in question. Notwithstanding subsection (B) above, it is understood and agreed that Supplier shall not be obligated to grant Hercules Third Party Contractors physical access to Supplier Facilities as part of such cooperation, as long as Supplier is able to provide such Hercules Third Party Contractors with physical access at or from a neutral site to the business processes and associated Equipment, Software and/or Systems used to perform the Services to the extent necessary and appropriate for such Hercules Third Party Contractors to perform the work assigned to them (and provided that, unless otherwise agreed, the cost of such neutral site shall be borne by Supplier unless and to the extent the need for such access is attributable to the termination or non-renewal of the Agreement with respect to the applicable Service for reasons other than Supplier's comply with its obligations under this Agreement, and provided that, in the latter event, Supplier notifies Hercules of such additional costs, obtains Hercules' approval prior to incurring such costs, and uses commercially reasonable efforts to minimize any costs to be borne by Hercules.). Hercules personnel and Hercules Third Party Contractors shall comply with Supplier’s reasonable security and confidentiality requirements, and shall, to the extent performing work on Software, Equipment or Systems for which Supplier has operational responsibility, comply with Supplier’s reasonable standards, methodologies, and procedures (and Hercules shall be responsible to Supplier for any breaches of such standards, methodologies, and procedures by Hercules personnel and /or Hercules Third Party Contractors.

(c)

Notice by Supplier. Supplier shall immediately notify Hercules when it becomes aware that an act or omission of a Hercules Third Party Contractor will cause, or has caused, a problem or delay in providing the Services, and shall use commercially reasonable efforts to work with Hercules, the Eligible Recipients and the Hercules Third Party Contractor to prevent or circumvent such problem or delay. Supplier shall cooperate with Hercules, the Eligible Recipients and Hercules Third Party Contractors to resolve differences and conflicts arising between the Services and other activities undertaken by Hercules, the Eligible Recipients or Hercules Third Party Contractors. Any notification provided by Supplier in accordance with this Section 4.6(c) shall not excuse Supplier from the performance of any of its obligations under this Agreement.

4.7 Companion Agreements

(a)

At Hercules' request, the terms of this Master Agreement shall be incorporated by reference into individual Companion Agreements, which shall be executed by Genpact International or an Affiliate of Genpact International and Hercules Incorporated or an Eligible Recipient. All Services shall be provided by Genpact International or the applicable Affiliate of Genpact International pursuant to this Master Agreement or an executed Companion Agreement. Unless and to the extent an individual Companion Agreement expressly provides otherwise, each Companion Agreement shall incorporate by reference the terms and conditions of this Master Agreement and shall not be construed as altering or superseding the rights and obligations of the Parties under this Master Agreement. Unless and to the extent otherwise agreed, the form of the Companion Agreement shall be as set forth in Exhibit 3.

(b)

Notwithstanding the foregoing, Genpact International shall be responsible for any failure by an Affiliate of Genpact International to perform in accordance with a Companion Agreement executed by such Affiliate or

to comply with such Affiliate’s duties or obligations under such Companion Agreement to the same extent as if such failure to perform or comply was committed by Genpact International, including, subject to Section 18.3, any damages incurred by Hercules or an Eligible Recipient as a result of any such failure to perform or comply.

(c)

The Supplier Account Manager (and his or her designees(s)) shall remain responsible for the administration of this Master Agreement and the individual Companion Agreements on a day-to-day basis on behalf of Supplier (including decisions, consents, notices, acceptances and approvals) and only the Supplier Account Manager (and his or her designees(s)) shall be authorized to act on behalf of Supplier or to amend, modify, change, waive or discharge their rights and obligations under this Master Agreement or such Companion Agreements.

(d)

The Hercules Relationship Manager (and his or her designees(s)) shall remain responsible for the administration of this Master Agreement and the individual Companion Agreements on a day-to-day basis on behalf of Hercules and the Eligible Recipients (including decisions, consents, notices, acceptances and approvals) and only the Hercules Relationship Manager (and his or her designees(s)) shall be authorized to act on behalf of Hercules and the Eligible Recipients or to amend, modify, change, waive or discharge their rights and obligations under this Master Agreement or such Companion Agreements.

4.8 Guaranty.

As a material condition to the effectiveness of this Agreement, Supplier shall cause the Guaranty to be executed by Guarantor and delivered to Hercules on the Effective Date.

5	REQUIRED CONSENTS

5.1 Supplier Responsibility.

At Hercules’ request, Supplier shall reasonably cooperate with Hercules (and/or a Hercules Third Party Contractor) in obtaining Required Consents. Supplier shall assist Hercules in minimizing or eliminating any fees or expenses associated with obtaining such Required Consents.

5.2 Financial Responsibility.

Hercules shall pay any transfer, re-licensing or termination fees or expenses associated with obtaining any Required Consents.

6	FACILITIES, SOFTWARE, EQUIPMENT, CONTRACTS AND ASSETS ASSOCIATED WITH THE PROVISION OF SERVICES

6.1 Service Facilities.

(a)

Service Facilities. Supplier and its Affiliates and Subcontractors shall provide the Services at or from (i) the Hercules Facilities described on Schedule O.1, (ii) the Supplier Facilities described on Schedule O.2, each of which shall be approved in advance by Hercules, or (iii) any other service location approved by Supplier and Hercules. Supplier shall obtain Hercules' prior approval for any proposed relocation by Supplier, its Affiliates or Subcontractors of the provision of a Service to a new or different Supplier Facility. Hercules acknowledges and has approved the Supplier Facilities set forth on Schedule O.2 as of the Effective Date for the provision of the Services and scope thereof described therein. Supplier shall be financially responsible for all additional costs, taxes or expenses related to or resulting from any Supplier-initiated relocation to a new or different Supplier Facility, including any costs or expenses incurred or experienced by Hercules or any Eligible Recipient as a result of such relocation.

(b)

Supplier’s Responsibilities. Except as provided in Sections 6.1(a), 6.2(a) and (b) and Section 6.4(e), Supplier shall be responsible for providing all furniture, fixtures, Equipment, space and other facilities required to perform the Services and all upgrades, improvements, replacements and additions to such furniture, fixtures, Equipment, space and facilities. Without limiting the foregoing, Supplier shall provide (i)

all maintenance, site management, site administration and similar services for the Supplier Facilities, (ii) uninterrupted power supply services for the Supplier Facilities.

6.2 Hercules Facilities.

(a)

Hercules Facilities. Hercules shall provide Supplier with the use of and access to the Hercules Facilities (or equivalent space) described in Schedule O.1 for the periods specified therein solely as necessary for Supplier to perform its obligations under this Agreement. All Hercules owned or leased assets provided for the use of Supplier under this Agreement shall remain in Hercules Facilities unless Hercules otherwise agrees. In addition, all improvements or modifications to Hercules Facilities requested by Supplier shall be (i) subject to review and approval in advance by Hercules, (ii) in strict compliance with Hercules' then-current policies, standards, rules and procedures, and (iii) performed by and through Hercules at Supplier’s expense. Supplier acknowledges and agrees that the facilities to be provided by Hercules are sufficient for performing the Services and for satisfying Supplier’s responsibilities under this Agreement. THE HERCULES FACILITIES ARE PROVIDED BY HERCULES TO SUPPLIER ON AN AS-IS, WHERE-IS BASIS. HERCULES EXPRESSLY DISCLAIMS ANY WARRANTIES, EXPRESS OR IMPLIED, AS TO THE HERCULES FACILITIES, OR THEIR CONDITION OR SUITABILITY FOR USE BY SUPPLIER.

(b)

Furniture, Fixtures and Equipment. At the Hercules Facilities described in Schedule O.1, Hercules shall provide office space and office furniture for the number of Supplier Personnel and for such periods specified in Schedule O.1. The office space and office furniture provided by Hercules for the use of Supplier Personnel will be generally comparable to the office space and office furniture provided to (i) the Hercules Personnel prior to the Commencement Date; or (ii) the then-standard office space and office furniture provided to similarly situated Hercules employees. Supplier Personnel using the office facilities provided by Hercules will be accorded reasonable access to the communications wiring in such facilities (including fiber, copper and wall jacks, subject to Section 6.2(c) and the use of certain shared office equipment and services, such as photocopiers, local and long distance telephone service for Hercules-related calls, telephone handsets, mail service, office support service (e.g., janitorial), heat, light, and air conditioning; provided that such access and usage shall be solely for and in connection with the provision of Services by such Supplier Personnel, and provided further that Supplier shall reimburse Hercules for the additional incremental costs incurred by Hercules or the Eligible Recipients if and to the extent Supplier’s technology solution, service delivery model and/or inefficiency cause its usage or consumption of such resources to exceed historical levels. Supplier shall be financially responsible for providing all other office space, office furniture, fixtures or office related equipment or services needed by Supplier or Supplier Personnel assigned to Hercules Facilities, and for all upgrades, replacements and additions to such office furniture, fixtures or equipment; provided that such office furniture, fixtures and equipment must be approved in advance by Hercules and meet Hercules' then-current standards, and provided further that Supplier shall use commercially reasonable efforts to purchase and use surplus Hercules furniture, fixtures and equipment to the extent available.

(c)

Supplier’s Responsibilities Regarding Hercules' Network.

(i)

To the extent Supplier Personnel working on an ongoing basis at a Hercules Facility are, with Hercules' approval, connected directly to the network(s) of Hercules or an Eligible Recipient, the Equipment (and all Software installed thereon) used by such personnel shall be (i) subject to Section 6.4(e), provided to the applicable Supplier Personnel by Hercules at Hercules' expense, (ii) maintained and supported by or through Hercules (including by Supplier as and to the extent provided in Schedule E), at Hercules' expense, and (iii) shall be and remain in strict compliance with Hercules' then-current security policies, architectures, requirements, standards, rules and procedures, unless and to the extent deviations are approved in advance by Hercules. Hercules shall load the Software image on such Equipment and Supplier shall not install or permit the installation of any other software on such Equipment without Hercules' prior approval.

(ii)

To the extent Supplier Personnel working on an ongoing basis from a Supplier Facility are, with Hercules' approval, connected directly to the network(s) of Hercules or an Eligible Recipient, the Equipment (and all Software installed thereon) used by such personnel shall be (i) provided to the applicable Supplier Personnel by Supplier at Supplier's expense, (ii) maintained and supported by or

through Supplier, at Supplier's expense, and (iii) shall be and remain in strict compliance with Hercules’ then-current security policies, architectures, requirements, standards, rules and procedures, unless and to the extent deviations are approved in advance by Hercules.

(d)

Hercules Rules and Compliance. In performing the Services and using the Hercules Facilities, Supplier shall observe and comply with all Hercules policies, rules, and regulations (including those governing business practices, smoking, harassment, weapons, safety, security, drugs and alcohol) applicable to Hercules Facilities or the provision of the Services which have been communicated to Supplier or Supplier Personnel in advance by such means as are generally used by Hercules to disseminate such information to its employees or contractors, including those set forth on Schedules T.1 and T.3 and those applicable to specific Hercules Sites (collectively, “Hercules Rules”). The Parties acknowledge and agree that, as of the Commencement Date, Supplier is fully informed as to the Hercules Rules. Supplier shall be responsible for the promulgation and distribution of Hercules Rules to Supplier Personnel as and to the extent necessary and appropriate. In addition, Supplier and Supplier Personnel shall be responsible for familiarizing themselves with the premises and operations at each Hercules Site or Hercules Facility at, to or from which Services are rendered and the Hercules Rules applicable to each such Site or Facility. Additions or modifications to the Hercules Rules may be (i) communicated orally by Hercules or an Eligible Recipient directly to Supplier and Supplier Personnel, (ii) disclosed to Supplier and Supplier Personnel in writing, (iii) conspicuously posted at a Hercules Facility, (iv) electronically posted, or (v) communicated to Supplier or Supplier Personnel by means generally used by Hercules to disseminate such information to its employees or contractors. Supplier and Supplier Personnel shall observe and comply with such additional or modified Hercules Rules.

(e)

Physical Security at Hercules Facilities. Hercules is responsible for the physical security of the Hercules Facilities; provided, that Supplier shall be responsible for the safety and physical access and control of the areas that Supplier is using in performing the Services and Supplier shall not permit any person to have access to, or control of, any such area unless such access or control is permitted in accordance with control procedures approved by Hercules or any higher standard agreed to by Hercules and Supplier. Supplier shall be solely responsible for compliance by Supplier Personnel with such control procedures, including obtaining advance approval to the extent required.

(f)

Use of Hercules Facilities.

(i)

Unless Supplier obtains Hercules' prior written agreement, which Hercules may withhold in its sole discretion, Supplier shall use the Hercules Facilities, and the Equipment and Software located therein, only to provide the Services to Hercules and the Eligible Recipients.

(ii)

Hercules reserves the right to relocate any Hercules Facility from which the Services are then being provided by Supplier to another geographic location; provided that, in such event, Hercules will provide Supplier with comparable office space in the new geographic location. In such event, Hercules shall pay the applicable labor rate(s) for additional personnel reasonably required by Supplier and for the incremental Out-of-Pocket Expenses reasonably incurred by Supplier in physically relocating to such new geographic location; provided that such relocation is not expressly contemplated in this Agreement, and that Supplier notifies Hercules of such additional required personnel and incremental Out-of-Pocket Expenses, obtains Hercules' approval prior to using such personnel or incurring such expenses, and uses commercially reasonable efforts to minimize such personnel and expenses.

(iii)

Hercules also reserves the right to direct Supplier to cease using all or part of the space in any Hercules Facility from which the Services are then being provided by Supplier and to thereafter use such space for its own purposes. In such event, Hercules shall reimburse Supplier for any reasonable incremental Out-of-Pocket Expenses incurred by Supplier in leasing substitute space and physically relocating to such space; provided that such relocation is not expressly contemplated in this Agreement and that Supplier notifies Hercules of such incremental Out-of-Pocket Expenses, obtains Hercules' approval prior to incurring such expenses; and uses commercially reasonable efforts to minimize such expenses.

(g)

Conditions for Return. When the Hercules Facilities are no longer to be used by Supplier as contemplated by Section 6.2 or are otherwise no longer required for performance of the Services, Supplier shall notify Hercules as soon as practicable and shall vacate and return such Hercules Facilities (including any improvements to such facilities made by or at the request of Supplier) to Hercules in substantially the same condition as when such facilities were first provided to Supplier, subject to reasonable wear and tear.

(h)

No Violation of Laws. Supplier shall (i) treat, use and maintain the Hercules Facilities in a reasonable manner, and (ii) ensure that neither Supplier nor any of its Subcontractors commits, and use all reasonable efforts to ensure that no business visitor or invitee commits, any act in violation of any Laws in such Supplier occupied Hercules Facility or any act in violation of Hercules' insurance policies or in breach of Hercules' obligations under the applicable real estate leases in such Supplier occupied Hercules Facilities (in each case, to the extent Supplier has received notice of such insurance policies or real estate leases or should reasonably be expected to know of such obligations or limitations).

6.3 Supplier Facilities.

During the Term, Supplier shall provide to Hercules, at no charge, (i) reasonable access to and use of Supplier Facilities from which the Services are being performed, (ii) access to reasonable work/conference space at such Supplier Facilities for the conduct of Hercules' business. In addition, at Hercules' request, Supplier shall provide reasonable access to and use of such Supplier Facilities by Hercules, the Eligible Recipients or Hercules Third Party Contractors as and to the extent provided in Section 4.6.

6.4 Software, Equipment and Third Party Contracts.

(a)

Financial Responsibility. Supplier shall be responsible for any third party fees or expenses on or after the Commencement Date (or, if later, the date on which Supplier assumes responsibility for the Services in question in accordance with the Transition Plan) associated with Software, Equipment, Equipment leases and Third Party Contracts for which Supplier is financially responsible under Schedule E or J.1. Hercules shall be responsible for third party fees or expenses incurred on or after the Commencement Date (or, if later, the date on which Supplier assumes responsibility for the Services in question in accordance with the Transition Plan) associated with Software, Equipment, Equipment leases and Third Party Contracts for which Hercules is financially responsible under Schedule E or J.1. Unless otherwise expressly provided, each Party also shall be responsible for any third party fees or expenses on or after the Commencement Date (or, if later, the date on which Supplier assumes responsibility for the Services in question in accordance with the Transition Plan) associated with new, substitute or replacement Software, Equipment, Equipment leases or Third Party Contracts (including Upgrades, enhancements, new versions or new releases of such Software or Equipment) for which such Party is financially responsible under Schedule E or J.1.

(b)

Operational Responsibility. With respect to Software, Equipment, Equipment leases and related Third Party Contracts for which Supplier is operationally responsible under Schedule E or J.1, Supplier shall be responsible for (i) the evaluation, procurement, testing, installation, rollout, use, support, management, administration, operation and maintenance of such Software, Equipment, Equipment leases and Third Party Contracts; (ii) the evaluation, procurement, testing, installation, rollout, use, support, management, administration, operation and maintenance of new, substitute or replacement Software, Equipment, Equipment leases and Third Party Contracts (including Upgrades, enhancements, new versions or new releases of such Software); (iii) the performance, availability, reliability, compatibility and interoperability of such Software, Equipment and Third Party Contracts, each in accordance with this Agreement, including the Service Levels and Change Control Procedures; (iv) compliance with and performance of all operational, administrative and contractual obligations specified in the applicable Software licenses, Equipment leases and Third Party Contracts; (v) the administration and exercise as appropriate of all rights available under such licenses, leases and contracts; and (vi) the payment of any fees, penalties, charges, interest or other expenses due and owing under or with respect to such licenses, leases and contracts that are incurred, caused by or result from Supplier’s failure to comply with or perform its obligations under this Section 6.4(b)

(except to the extent that such failure directly results from a breach by Hercules of its obligations under this Agreement).

(c)

Rights Upon Expiration/Termination. With respect to all Third Party Software licenses, Equipment leases and Third Party Contracts (excluding Shared Subcontractors) for which Supplier is financially responsible under Schedule E or J.1, Supplier shall use all commercially reasonable efforts to (i) obtain for Hercules, the Eligible Recipients and/or their designee(s) the license, sublicense, assignment and other rights specified in Sections 4.3(b) and 14.6, (ii) ensure that the granting of such license, sublicense, assignment and other rights is not subject to subsequent third party approval or the payment by Hercules, the Eligible Recipients or their designee(s) of license, assignment or transfer fees, (iii) ensure that the terms, conditions and prices applicable to Hercules, the Eligible Recipients and/or their designee(s) following expiration or termination are no less favorable than those otherwise applicable to Supplier, and at least sufficient for the continuation of the activities comprising the Services, and (iv) ensure that neither the expiration/termination of this Agreement nor the assignment of the license, lease or contract will trigger less favorable terms, conditions or pricing. If Supplier is unable to obtain any such rights and assurances, it shall notify Hercules in advance and shall not use such Third Party Software license, Equipment lease or Third Party Contract without Hercules' approval (and absent such approval, Supplier’s use of any such Third Party Software license, Equipment lease or Third Party Contract shall obligate Supplier to obtain or arrange, at no additional cost to Hercules, for such license, sublicense, assignment or other right for Hercules, the Eligible Recipients and their designee(s) upon expiration or termination). If Hercules consents to Supplier’s use of specific Third Party Software licenses, Equipment leases or Third Party Contracts under these circumstances, such consent shall be deemed to be conditioned on Supplier’s commitment to use all commercially reasonable efforts to cause such third party to agree at expiration or termination of this Agreement or the completion of Termination Assistance Services to permit Hercules, the Eligible Recipients and/or their designee(s) to assume prospectively the license, lease or contract in question or to enter into a new license, lease or contract with Hercules, the Eligible Recipients and/or their designee(s) on substantially the same terms and conditions, including price. If Hercules consents to Supplier’s use of specific Third Party Software licenses, Equipment leases or Third Party Contracts under these circumstances, such Third Party Software licenses, Equipment leases or Third Party Contracts shall be added to Schedule U.

(d)

Evaluation of Third Party Software, Equipment. In addition to its obligations under Section 6.4(a) and (b) and in order to facilitate Hercules' control of architecture, standards and plans pursuant to Section 9.5, Supplier shall use all commercially reasonable efforts to evaluate any Third Party Software and Equipment selected by or for Hercules or an Eligible Recipient to determine whether such Software and Equipment will adversely affect Hercules' environment, Hercules' ability to interface with and use the Software, Equipment and Systems and/or Supplier’s ability to provide the Services. Supplier shall complete and report the results of such evaluation to Hercules within fifteen (15) days of its receipt of Hercules' request; provided, that Supplier shall use all commercially reasonable efforts to respond more quickly in the case of a pressing business need or an emergency situation.

(e)

Hercules Provided Equipment. Hercules shall provide Supplier with the use of the Hercules owned and leased Equipment identified on Schedule O.3 (collectively, the “Hercules Provided Equipment”) for the periods specified in such Schedule solely for and in connection with the provision of the Services. Upon the expiration of the period specified in Schedule O.3 for each item of Hercules Provided Equipment (or when such Hercules Provided Equipment is no longer required by Supplier for the performance of the Services), Supplier shall promptly return such Hercules Provided Equipment in accordance with Section 6.4(f). THE HERCULES PROVIDED EQUIPMENT IS PROVIDED BY HERCULES TO SUPPLIER ON AN AS-IS, WHERE-IS BASIS. HERCULES EXPRESSLY DISCLAIMS ANY WARRANTIES, EXPRESS OR IMPLIED, AS TO THE HERCULES PROVIDED EQUIPMENT, OR ITS CONDITION OR SUITABILITY FOR USE BY SUPPLIER TO PROVIDE THE SERVICES, INCLUDING WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE.

(f)Notice of Decommissioning. Supplier agrees to notify Hercules promptly if and to the extent any Hercules or Eligible Recipient owned Equipment or Hercules or Eligible Recipient leased Equipment will no longer be used to provide the Services. The notification will include the identification of the Equipment, and the date it will no longer be needed by Supplier, along with the reason for decommissioning. Upon receipt of any such

notice, Hercules may (or may cause the applicable Eligible Recipient to), in its sole discretion, terminate the Equipment lease for such leased Equipment as of the date specified in such notice and sell or otherwise dispose of or redeploy such Hercules or Eligible Recipient owned Equipment that is the subject of such a notice as of the date specified in such notice. Upon Supplier ceasing to use any Equipment (or, in the case of leased Equipment, upon the last day Hercules or Eligible Recipient is obligated to make such leased Equipment available to Supplier, if earlier), Supplier shall return the same to Hercules, the Eligible Recipients and/or their designee(s) in condition at least as good as the condition thereof on the Commencement Date, ordinary wear and tear excepted. Supplier shall, at Supplier’s expense, deliver such Equipment to the location designated by Hercules, the Eligible Recipients and/or their designee(s).

6.5 Notice of Defaults.

Hercules and Supplier shall promptly inform the other Party in writing of any breach of, or misuse or fraud in connection with, any Third Party Contract, Equipment lease or Third Party Software license used in connection with the Services of which it becomes aware and shall cooperate with the other Party to prevent or stay any such breach, misuse or fraud.

7 SERVICE LEVELS

7.1 General.

(a)

General Performance Standards. Beginning on the Commencement Date (or, if later, the date on which Supplier assumes responsibility for the Services in question in accordance with the Transition Plan), Supplier shall perform each Service at levels of accuracy, quality, completeness, timeliness, responsiveness and resource efficiency that are at least equal to the documented or verifiable levels received by Hercules or the Eligible Recipients prior to such date. In addition, Supplier shall perform the Services at levels of accuracy, quality, completeness, timeliness, responsiveness, resource efficiency and productivity that are equal to or higher than the accepted industry standards of leading providers of BPO/ADM services.

(b)

Service Level Performance Standards. Beginning on the Commencement Date (or, if later, the date on which Supplier assumes responsibility for the Services in question in accordance with the Transition Plan) Supplier shall perform the Services so as to meet or exceed the Service Levels set forth in Schedule G. To the extent the Parties have established a Service Level for a specific Service, the obligations described in Section 7.1(a) shall not be construed to alter, expand or supersede such Service Level.

(c)

Multiple Service Levels. If more than one Service Level applies to any particular obligation of Supplier, Supplier shall perform in accordance with the most stringent of such Service Levels.

(d)

Responsibility. Supplier shall be responsible for meeting or exceeding the applicable Service Levels even where doing so is dependent on the provision of Services by Subcontractors or non-Supplier Personnel.

7.2 Service Level Credits; Deliverable Credits.

(a)

Service Level Credits. Supplier recognizes that Hercules is paying Supplier to deliver certain Services at specified Service Levels. If Supplier fails to meet such Service Levels, then, in addition to other remedies available to Hercules, Supplier shall pay or credit to Hercules the performance credits specified in Schedule G (“Service Level Credits”) in recognition of the diminished value of the Services resulting from Supplier’s failure to meet the agreed upon level of performance, and not as a penalty. Under no circumstances shall the imposition of Service Level Credits be construed as Hercules' sole or exclusive remedy for any failure to meet the Service Levels. However, if Hercules recovers monetary damages from Supplier as a result of Supplier’s failure to meet a Service Level, Supplier shall be entitled to set-off against such damages any Service Level Credits paid for the failure giving rise to such recovery. Service Level Credits are not counted toward and are not subject to the overall cap on Supplier’s liability. For avoidance of doubt, unless otherwise specified in Schedule G, Supplier’s performance under the Master Agreement and all Companion Agreements shall be measured and reported in the aggregate for purposes of determining Supplier’s compliance with applicable Service Levels and calculating and assessing any resulting Service Level Credits.

(b)

Deliverable Credits. Supplier recognizes that Hercules is paying Supplier to provide certain Critical Deliverables by the time and in the manner agreed by the Parties. If Supplier fails to meet its obligations with respect to such Critical Deliverables, then, in addition to other remedies available to Hercules, Supplier shall pay or credit to Hercules the Deliverable Credits specified in Schedules G, H and/or H.1 or established by Hercules as part of the project approval process on a case by case basis in recognition of the diminished value of the Services resulting from Supplier’s failure to meet the agreed upon level of performance, and not as a penalty. If Hercules recovers monetary damages from Supplier as a result of Supplier’s failure to meet its obligations with respect to one (1) or more Critical Deliverables, Supplier shall be entitled to set-off against such damages any Deliverable Credits paid for the failure(s) giving rise to such recovery. Deliverable Credits are not counted toward and are not subject to the overall cap on Supplier’s liability and are in addition to Service Level Credits.

7.3 Problem Analysis.

If Supplier fails to provide Services in accordance with the Service Levels and/or the terms of this Agreement, Supplier shall (after restoring service or otherwise resolving any immediate problem) (i) promptly investigate and report on the causes of the problem; (ii) provide a Root Cause Analysis of such failure as soon as practicable after such failure or at Hercules' request (iii) correct the problem as soon as practicable (regardless of cause or fault) or coordinate the correction of the problem if Supplier does not have responsibility for the cause of the problem; (iv) advise Hercules of the status of remedial efforts being undertaken with respect to such problem; (v) demonstrate to Hercules' reasonable satisfaction that the causes of such problem have been or will be corrected on a permanent basis; and (vi) take all commercially reasonable action to prevent any recurrence of such problem. Supplier shall use all commercially reasonable efforts to complete the Root Cause Analysis within fifteen (15) days of a failure; provided that, if it is not capable of being completed within fifteen (15) days using reasonable diligence, Supplier shall complete such Root Cause Analysis as quickly as possible and shall notify Hercules prior to the end of the initial fifteen (15) day period as to the status of the Root Cause Analysis and the estimated completion date.

7.4 Continuous Improvement Reviews.

(a)

Improvement of Service Quality. Supplier acknowledges that the quality of the Services provided in certain Service areas can and will be improved during the Term and agrees that the Service Levels in such Service areas will be enhanced periodically in recognition of the anticipated improvement in service quality. Supplier will improve the quality of the Services provided in such areas to meet or exceed the enhanced Service Levels and shall do so at no additional charge to Hercules.

(b)

Increase of Service Levels. In addition to the foregoing, Hercules and Supplier shall periodically review the Service Levels and the performance data collected and reported by Supplier in accordance with Schedule G, and relevant industry data and trends on an annual basis (or more frequently if requested by Hercules). Supplier shall give Hercules any assistance it reasonably requires to review and verify such data. As part of such review process, the Parties shall, at no additional cost to Hercules, improve the Service Levels to reflect the higher performance levels actually attained or attainable by Supplier in accordance with Schedule G. In addition, subject to Section 4.4 and Schedule G, the Parties shall agree, to the extent reasonable and appropriate, to (i) improve the Service Levels to reflect improved performance capabilities associated with advances in the proven processes, technologies and methods available to perform the Services; (ii) add new Service Levels to permit further measurement or monitoring of the accuracy, quality, completeness, timeliness, responsiveness, cost-effectiveness, or productivity of the Services; (iii) modify or increase the Service Levels to reflect changes in the processes, architecture, standards, strategies, needs or objectives defined by Hercules; and (iv) modify or increase the Service Levels to reflect agreed upon changes in the manner in which the Services are performed by Supplier.

7.5 Measurement and Monitoring.

On or before the Commencement Date or as otherwise provided in Schedule G, Supplier shall implement measurement and monitoring tools and metrics as well as standard reporting procedures, all acceptable to Hercules, to measure and report Supplier’s performance of the Services at a level of detail sufficient, as determined by Hercules, to verify Supplier’s compliance with the applicable Service Levels. Hercules or its designee shall have the right to audit

all such measurement and reporting tools, performance metrics and reporting procedures. Supplier shall provide Hercules with on-line access to up-to-date problem management data and other data regarding the status of service problems, service requests and user inquiries. Supplier also shall provide Hercules with access to the data used by Supplier to calculate its performance against the Service Levels and the measurement and monitoring tools and procedures utilized by Supplier to generate such data for purposes of audit and verification. Hercules shall not be required to pay any amount in addition to the Charges for such measurement and monitoring tools or the resource utilization associated with their use.

7.6 Satisfaction Surveys.

(a)

General. At specified intervals, Supplier and/or independent third parties engaged by Supplier shall conduct the satisfaction surveys described in Schedule Q in accordance with the survey protocols and procedures specified therein. To the extent Supplier engages an independent third party to perform all or any part of any satisfaction survey, such third party shall be approved in advance by Hercules. Supplier shall be responsible for the expenses of all such surveys conducted pursuant to this Section 7.6(a) and Schedule Q.

(b)

Hercules Conducted Surveys. In addition to the satisfaction surveys to be conducted pursuant to Section 7.6(a), Hercules may survey satisfaction with Supplier’s performance in connection with and as part of broader satisfaction surveys periodically conducted by Hercules and/or independent third parties engaged by Hercules. At Hercules' request, Supplier shall cooperate and assist Hercules with the formulation of the survey questions, protocols and procedures and the execution and review of such surveys. At Hercules' request, Supplier shall provide data to Hercules or such third party to enable such surveys.

(c)

Survey Follow-up. If the results of any satisfaction survey conducted pursuant to Section 7.6(a) or (b) indicate that the level of satisfaction with Supplier’s performance is less than the target level specified by Hercules in Schedule Q, Supplier shall promptly: (i) analyze and report on the root cause of such dissatisfaction; (ii) develop an action plan to address and improve the level of satisfaction; (iii) present such plan to Hercules for its review, comment and approval; and (iv) take action in accordance with the approved plan and as necessary to improve the level of satisfaction. Hercules and Supplier shall establish a schedule for completion of a root cause analysis and the preparation and approval of the action plan which shall be reasonable and consistent with the severity and materiality of the problem; provided, that the time for completion of such tasks shall not exceed thirty (30) days from the date such user survey results are finalized and reported. Supplier’s action plan developed hereunder shall specify the specific measures to be taken by Supplier and the dates by which each such action shall be completed. Following completion of the measures described in such action plan, Supplier shall conduct follow-up surveys with the affected Hercules management and/or Authorized Users to confirm that the cause of any dissatisfaction has been addressed and that the level of satisfaction has improved. If Supplier fails to take the actions set forth in the action plan by the agreed upon dates, then, in addition to any other remedies available to Hercules under this Agreement, at law or in equity, Supplier shall pay to Hercules the applicable Deliverable Credits, if any, agreed to in the applicable action plan.

7.7 Notice of Adverse Impact.

If Supplier becomes aware of any failure by Supplier to comply with its obligations under this Agreement or any other situation (i) that has impacted or reasonably could impact the maintenance of Hercules' or any Eligible Recipient’s financial integrity or internal controls, the accuracy of Hercules' or any Eligible Recipient’s financial, accounting, safety, security, manufacturing/production quality or human resources records and reports, or compliance with Hercules Standards or applicable Laws, or (ii) that has had or reasonably could have any other material adverse impact on the Services in question or the impacted business operations of Hercules or the Eligible Recipients, then, Supplier shall immediately inform Hercules in writing of such situation and the impact or expected impact and Supplier and Hercules shall meet to formulate an action plan to minimize or eliminate the impact of such situation.

8	PROJECT PERSONNEL

8.1 Key Supplier Personnel.

(a)

Approval of Key Supplier Personnel.

(i)

The positions to be held by Key Supplier Personnel are listed in Schedule C. Before assigning an individual to a Key Supplier Personnel position, whether as an initial assignment or a subsequent assignment, Supplier shall notify Hercules of the proposed assignment, shall introduce the individual to appropriate Hercules representatives, shall provide reasonable opportunity for Hercules representatives to interview the individual, and shall provide Hercules with a resume and such other information about the individual as may be reasonably requested by Hercules. If Hercules in good faith objects to the proposed assignment, the Parties shall attempt to resolve Hercules' concerns on a mutually agreeable basis. If the Parties have not been able to resolve Hercules' concerns within five (5) business days of Hercules communicating its concerns, Supplier shall not assign the individual to that position and shall propose to Hercules the assignment of another individual of suitable ability and qualifications.

(ii)

Hercules may, from time to time, change the positions designated as Key Supplier Personnel positions with Supplier’s approval which shall not be unreasonably withheld. In addition, the number of Key Supplier Personnel positions shall be increased in the event of New Services, expanded scope, corporate acquisitions, increased Service volumes, or other such circumstances to maintain a ratio of Key Supplier Personnel to Supplier Personnel that is no less than the ratio existing as of the Commencement Date.

(b)

Continuity of Key Supplier Personnel. Supplier shall cause each of the Key Supplier Personnel to devote full time and effort to the provision of Services under this Agreement for, at a minimum, the period specified in Schedule C from the date he or she assumes the position in question (provided that, in the case of Key Supplier Personnel assigned prior to the Commencement Date, the minimum period shall be the period specified in Schedule C from the Commencement Date). Supplier shall not transfer, reassign or remove any of the Key Supplier Personnel (except as a result of voluntary resignation, involuntary termination for cause, illness, disability, or death) or announce its intention to do so during the specified period without Hercules' prior approval, which Hercules may withhold in its sole discretion. In the event of the voluntary resignation, involuntary termination for cause, illness, disability or death of one of its Key Supplier Personnel during or after the specified period, Supplier shall (i) give Hercules as much notice as reasonably possible of such development, and (ii) expeditiously identify and obtain Hercules' approval of a suitable replacement. In addition, even after the period specified in Schedule C, Supplier shall transfer, reassign or remove its Key Supplier Personnel only after (i) giving Hercules reasonable prior notice of such action, (ii) identifying and obtaining Hercules' approval of a suitable replacement at least thirty (30) days prior to such transfer, reassignment or removal, (iii) providing Hercules with a plan describing the steps and knowledge transfer necessary to transition responsibility to the replacement, and (iv) demonstrating to Hercules' reasonable satisfaction that such action will not have an adverse impact on Supplier’s performance of its obligations under this Agreement. Unless otherwise agreed, Supplier shall not transfer, reassign or remove more than twenty percent (20%) of the Key Supplier Personnel in any six (6) month period.

(c)

Retention and Succession. Supplier shall implement and maintain a retention strategy designed to retain Key Supplier Personnel on the Hercules account for the prescribed period. Supplier shall also maintain active succession plans for each of the Key Supplier Personnel positions.

8.2 Supplier Account Manager.

Supplier shall designate a “Supplier Account Manager” for this Hercules engagement. The Supplier Account Manager shall (i) be one of the Key Supplier Personnel; (ii) be a full time employee of Supplier; (iii) devote his or her full time and effort to managing the Services; (iv) remain in this position for a minimum period of two (2) years from the initial assignment (except as a result of voluntary resignation, involuntary termination for cause, illness, disability, or death); (v) serve as the single point of accountability for the Services, (vi) be the single point of contact to whom all

Hercules communications concerning this Agreement may be addressed; (vii) have authority to act on behalf of Supplier in all day-to-day matters pertaining to this Agreement; (vi) have day-to-day responsibility for service delivery, billing and relationship management; and (viii) have day-to-day responsibility for customer satisfaction and Service Levels attainment.

8.3 Supplier Personnel Are Not Hercules Employees.

Except as otherwise expressly set forth in this Agreement, the Parties intend to create an independent contractor relationship and nothing in this Agreement shall operate or be construed as making Hercules (or the Eligible Recipients) and Supplier partners, joint venturers, principals, joint employers, agents or employees of or with the other. No officer, director, employee, agent, Affiliate, contractor or subcontractor retained by Supplier to perform work on Hercules' behalf hereunder shall be deemed to be an officer, director, employee, agent, Affiliate, contractor or subcontractor of Hercules or the Eligible Recipients for any purpose. Supplier, not Hercules or the Eligible Recipients, has the right, power, authority and duty to supervise and direct the activities of the Supplier Personnel and to compensate such Supplier Personnel for any work performed by them on the behalf of Hercules or the Eligible Recipients pursuant to this Agreement. Supplier, and not Hercules or the Eligible Recipients, shall be responsible and therefore solely liable for all acts and omissions of Supplier Personnel, including acts and omissions constituting negligence, willful misconduct and/or fraud.

8.4 Replacement, Qualifications, and Retention of Supplier Personnel.

(a)

Sufficiency and Suitability of Personnel. Supplier shall assign (or cause to be assigned) sufficient Supplier Personnel to provide the Services in accordance with this Agreement and such Supplier Personnel shall possess suitable competence, ability and qualifications and shall be properly educated and trained for the Services they are to perform.

(b)

Requested Replacement. In the event that Hercules determines lawfully and in good faith that the continued assignment to Hercules of any individual Supplier Personnel (including Key Supplier Personnel) is not in the best interests of Hercules or the Eligible Recipients, then Hercules shall give Supplier notice to that effect requesting that such Supplier Personnel be replaced. Supplier shall have ten (10) days following Hercules' request for removal of such Supplier Personnel in which to investigate the matters forming the basis of such request, correct any deficient performance and provide Hercules with assurances that such deficient performance shall not recur (provided that, if requested to do so by Hercules for actual or suspected violations of Hercules Rules, Supplier shall immediately remove (or cause to be removed) the individual in question from all Hercules Facilities and Hercules Sites pending completion of Supplier’s investigation and discussions with Hercules). If, following such ten (10) day period, Hercules is not reasonably satisfied with the results of Supplier’s efforts to correct the deficient performance and/or to ensure its non-recurrence, Supplier shall, as soon as possible, permanently remove and replace such Supplier Personnel with an individual of suitable ability and qualifications, without cost to Hercules. Nothing in this provision shall operate or be construed to limit Supplier’s responsibility for the acts or omission of the Supplier Personnel, or be construed as joint employment.

(c)

Turnover Rate and Data. Supplier shall use commercially reasonable efforts to keep the turnover rate of Supplier Personnel to a level comparable to or better than the industry average for well-managed service companies in the applicable country performing services similar to the Services. If Hercules believes that the turnover rate of Supplier Personnel is excessive and so notifies Supplier, Supplier shall within ten (10) business days (i) provide Hercules with data concerning Supplier’s turnover rate, (ii) meet with Hercules to discuss the reasons for the turnover rate, (iii) submit a proposal for reducing the turnover rate for Hercules' review and approval, and (iv) agree to a program for reducing the turnover rate at no additional cost to Hercules. Notwithstanding any transfer or turnover of Supplier Personnel, Supplier shall remain obligated to perform the Services without degradation and in accordance with the Service Levels.

(d)

Restrictions on Performing Services to Competitors. Neither Supplier nor any Subcontractor shall cause or permit Key Supplier Personnel, Supplier Personnel performing business analytics or other Supplier Personnel listed on Attachment C.2 to perform services directly or indirectly for a Direct Hercules Competitor either while engaged in the provision of Services or during the twelve (12) months immediately

following the termination of his or her involvement in the provision of such Services without Hercules’ prior written consent.

(e)

Background Check/Drug Screening. Supplier shall ensure that Supplier Personnel are authorized to work in any country in which they are assigned to perform Services. In addition, Supplier shall use all commercially reasonable efforts to verify that Supplier Personnel have not been convicted of or accepted responsibility for a felony or a misdemeanor involving a dishonest act, do not use illegal drugs, and are not otherwise disqualified from performing the assigned work under applicable Laws. To the extent permitted under applicable Law and administratively possible in the jurisdiction in which such Supplier Personnel are employed, Supplier shall perform or have performed a reasonable background check on all Supplier Personnel assigned to work hereunder, provided that, if a satisfactory background check was completed in connection with the hiring of such Supplier Personnel, it need not be repeated.

(f)

Notice by Supplier. Supplier shall provide Hercules not less than ninety (90) days notice of the expiration of any collective bargaining agreement with unionized Supplier Personnel if the expiration of such agreement or any resulting labor dispute could potentially interfere with or disrupt the business or operations of Hercules or an Eligible Recipient or impact Supplier’s ability to timely perform its duties and obligations under this Agreement.

8.5 Staffing Plan: Restrictions on Changes in Supplier Staffing/Facilities.

(a)

Staffing Plan. Set forth in Schedule M is a staffing plan showing the planned staffing and deployment of Supplier Personnel by Functional Service Area, job classification and location (the “Staffing Plan”). During the thirty (30) months immediately following the Effective Date Supplier shall comply with the Staffing Plan, and shall not make any material changes to the planned staffing and deployment without Hercules’ prior approval. For purposes of this provision, a material change is considered to be a change of five percent (5%) or more in any number in the personnel projection matrix in the Staffing Plan. The Parties acknowledge and agree that such review and approval of the Staffing Plan and changes in the Staffing Plan shall not constitute joint employment.

(b)

Supplier shall not move Services in a Functional Service Area or sub-Functional Service Area (e.g., Procurement, Accounts Payable, Human Resources, Payroll) provided from an approved Supplier Facility and country to a Supplier Facility and country from which such Services had not previously been provided by Supplier without Hercules' prior approval.

(c)

To the extent Services in the same Functional Service Area or sub-Functional Service Area are provided by Supplier Personnel from Supplier Facilities in different countries, Supplier shall not change the extent to which such Services are provided by Supplier Personnel from each such Supplier Facility and country, as specified in Schedule O.2, without Hercules' prior approval. For avoidance of doubt, changes attributable solely to changes in service volumes are not subject to the limits described in this Section 8.5(b).

8.6 Conduct of Supplier Personnel.

(a)

Conduct and Compliance. While at Hercules Facilities and Hercules Sites, Supplier Personnel shall (i) subject to Section 6.2(d), comply with the Hercules Rules and other rules and regulations regarding personal and professional conduct, (ii) comply with reasonable requests of Hercules or the Eligible Recipients personnel pertaining to personal and professional conduct, (iii) attend workplace training offered by Hercules and/or the Eligible Recipients at Hercules' request, and (iv) otherwise conduct themselves in a businesslike manner.

(b)

Identification of Supplier Personnel. Except as specifically authorized by Hercules, Supplier Personnel shall clearly identify themselves as Supplier Personnel and not as employees or representatives of Hercules and/or the Eligible Recipients. This shall include any and all communications, whether oral, written or electronic, unless and to the extent authorized by Hercules in connection with the performance of specific Services. Each Supplier Personnel shall wear a badge indicating that he or she is employed by Supplier or its Subcontractors when at a Hercules Facility or Hercules Site.

(c)

Restriction on Marketing Activity. Except for marketing representatives designated in writing by Supplier to Hercules, none of the Supplier Personnel shall conduct any marketing activities to Hercules or Eligible Recipient employees at Hercules Facilities or Hercules Sites (including marketing of any New Services), other than reporting potential marketing opportunities to Supplier’s designated marketing representatives.

8.7 Substance Abuse.

(a)

Employee Removal. To the extent permitted by applicable Laws, Supplier shall immediately remove (or cause to be removed) any Supplier Personnel who is known to be or reasonably suspected of engaging in substance abuse while at Hercules Facility or Hercules Site, in a Hercules vehicle or while performing Services. In the case of reasonable suspicion, such removal shall be pending completion of the applicable investigation. Substance abuse includes the sale, attempted sale, possession or use of illegal drugs, drug paraphernalia, or, to the extent not permitted on at Hercules Facilities or Hercules Sites, alcohol, or the misuse of prescription or non-prescription drugs.

(b)

Substance Abuse Policy. Supplier represents and warrants that it has and will maintain substance abuse policies, in each case in conformance with applicable Laws, and Supplier Personnel will be subject to such policies. Supplier represents and warrants that it shall require its Subcontractors and Affiliates providing Services to have and maintain such policy in conformance with applicable Law and to adhere to this provision.

8.8 EC Acquired Rights Directive.

(a) EC Acquired Rights Directive. The rights and obligations of the Parties with respect to Hercules Personnel employed as of the Effective Date or, if later, the Commencement Date in jurisdictions in which the EC Acquired Rights Directive is applicable shall be set forth in the Companion Agreement(s) for such jurisdictions. Supplier shall not communicate orally or in writing with such Hercules Personnel without Hercules’ prior approval.

(b) Validity. Hercules may be obligated under applicable Law to undertake consultation with certain employees in certain European countries through relevant recognized trade unions, works councils, other appointed employee representatives and/or with employees directly as to the proposal to outsource certain Services as provided in this Master Agreement. Accordingly, Hercules and Supplier agree that the provisions of this Master Agreement relating to the Services to be provided to Eligible Recipients in such countries shall not be effective as of the Effective Date. Such provisions shall become effective only if Hercules notifies Supplier in writing that the consultations have been completed or the applicable statutory periods have expired and the Parties thereafter execute a Companion Agreement with respect to Eligible Recipients in such country. If such written notice is given, it will designate whether all or only a portion of the Services are to be provided for the country in question.

9 SUPPLIER RESPONSIBILITIES

9.1 Policy and Procedures Manual

(a)

Delivery and Contents. As part of the Services, and at no additional cost to Hercules, Supplier shall deliver to Hercules a reasonably complete draft of the Policy and Procedures Manual(s) with respect to the Services to be transitioned to Supplier on the Commencement Date, for Hercules' review, comment and approval, at least thirty (30) days prior to the Commencement Date. Thereafter, as part of the Services, and at no additional cost to Hercules, Supplier shall deliver to Hercules a reasonably complete draft of the Policy and Procedures Manual with respect to each remaining Service (or, if such Policy and Procedures Manual already exists, any additional portions of such Policy and Procedures Manual pertaining to such Service), for Hercules' review, comment and approval, at least thirty (30) days prior to the Transition Milestone date for the transition of each such Service to Supplier. In each case, Hercules shall have at least fifteen (15) days to review the draft Policy and Procedures Manual and provide Supplier with comments and revisions. Supplier shall then incorporate such comments and revisions into the Policy and Procedures Manual and shall deliver

a final version to Hercules at least five (5) business days prior to the scheduled transition date for the applicable Service for Hercules' final approval.

At a minimum, each Policy and Procedures Manual shall address the subjects specified in Schedule S (to the extent applicable) and shall include the following:

(i)

a detailed description of the Services and the manner in which each will be performed by Supplier, including (A) the Equipment, Software, and Systems to be procured, operated, supported or used; (B) Suppliers standard operating practices (to the extent applicable and as uniquely adopted to the Services); (C) documentation (including operations manuals, user guides, specifications, policies/procedures and disaster recovery/business continuity plans) providing further details regarding such Services; (D) the specific activities to be undertaken by Supplier in connection with each Service, including, where appropriate, the direction, supervision, monitoring, staffing, reporting, planning and oversight activities to be performed by Supplier under this Agreement; (E) the checkpoint reviews, testing, acceptance, controls and other procedures to be implemented and used to assure service quality; and (F) subject to Section 15.7, the processes, methodologies and controls to be implemented and used by Supplier to ensure compliance with applicable Laws;

(ii)

the procedures for Hercules/Supplier interaction and communication, including (A) call lists; (B) procedures for and limits on direct communication by Supplier with Hercules personnel; (C) problem management and escalation procedures; (D) priority and project procedures; (E) Acceptance testing and procedures; (F) Quality Assurance procedures and internal controls (G) the Project formation process and implementation methodology; and (H) annual and quarterly financial objectives, budgets, and performance goals; and

(iii)

practices and procedures addressing such other issues and matters as Hercules shall require.

Supplier shall incorporate Hercules' then current policies and procedures in the Policy and Procedures Manual to the extent it is directed to do so by Hercules. In addition, as to the extent directed by Hercules, Supplier shall incorporate any policies and procedures set forth in the ITO supplier’s policy and procedure manual and integrate Supplier’s processes and procedures relating to the Services with the applicable ITO supplier’s services.

(b)

Compliance. Supplier shall perform the Services in accordance with applicable Laws and Hercules' then current policies and procedures until the Policy and Procedures Manual is finalized and agreed upon by the Parties. Thereafter, Supplier shall perform the Services in accordance with the Policy and Procedures Manual. In the event of a conflict between the provisions of this Agreement and the Policy and Procedures Manual, the provisions of this Agreement shall control unless the Parties expressly agree otherwise and such agreement is set forth in the relevant portion of the Policy and Procedures Manual.

(c)

Maintenance, Modification and Updating. Supplier shall maintain the Policy and Procedures Manual so as to be accessible electronically to Hercules management and Authorized Users via a secure web site in a manner consistent with Hercules' security policies. Supplier shall promptly modify and update the Policy and Procedures Manual monthly to reflect changes in the operations or procedures described therein and to comply with Hercules Standards, the Technology and Business Process Plan and Strategic Plans as described in Section 9.5. Supplier shall provide the proposed changes in the manual to Hercules for review, comment and approval. To the extent such change could (i) increase Hercules' total costs of receiving the Services; (ii) have adverse impact or require changes as described in Section 9.6(c), or (iii) violate or be inconsistent with the Hercules Standards, the Technology and Business Process Plan or Strategic Plans, Supplier shall not implement such change without first obtaining Hercules' approval, which Hercules may withhold in its sole discretion. For avoidance of doubt, Supplier shall prepare and maintain a single Policy and Procedures Manual for this Master Agreement and all Companion Agreements, rather than a separate Policy and Procedures Manual for each Master Agreement and Companion Agreement.

(d)

Annual Review. The Parties shall meet to perform a formal annual review of the Policy and Procedures Manual on each anniversary of the Commencement Date.

9.2 Reports.

(a)

Reports. Supplier shall provide Hercules with reports pertaining to the performance of the Services and Supplier’s other obligations under this Agreement sufficient to permit Hercules to monitor and manage Supplier’s performance (“Reports”). The Reports to be provided by Supplier shall include those described in Schedule R in the format and at the frequencies provided therein, as well as those provided by Hercules prior to the Commencement Date. In addition, from time to time, Hercules may identify additional Reports to be generated by Supplier and delivered to Hercules on an ad hoc or periodic basis. All Reports shall be provided to Hercules as part of the Services and at no additional charge to Hercules. The Reports described in Schedule R and, to the extent reasonably possible, all other Reports shall be provided to Hercules in a network accessible format with ability for data to be downloaded to Hercules' current standard spreadsheet application.

(b)

Back-Up Documentation. As part of the Services, Supplier shall provide Hercules with such documentation and other information available to Supplier as may be reasonably requested by Hercules from time to time in order to verify the accuracy of the Reports provided by Supplier. In addition, Supplier shall provide Hercules with all documentation and other information reasonably requested by Hercules from time to time to verify that Supplier’s performance of the Services is in compliance with the Service Levels and this Agreement.

(c)

Correction of Errors. As part of the Services and at no additional charge to Hercules, Supplier shall promptly correct any errors or inaccuracies in or with respect to the Reports, the information or data contained in such Reports, or other contract deliverables delivered by Supplier or its agents, Subcontractors, or other third party product or service providers to the extent provided in Schedule E.

9.3 Governance Model; Meetings.

(a)

Governance. The governance model to be employed by the Parties in connection with this Agreement is set forth in Schedule S.

(b)

Meetings. During the Term, representatives of the Parties shall meet periodically or as requested by Hercules to discuss matters arising under this Agreement, including any such meetings provided for in this Agreement, the Transition Plan, the Policy and Procedures Manual or Schedule S. Each Party shall bear its own costs in connection with the attendance and participation of such Party’s representatives in such meetings.

(c)

Agenda and Minutes. For each such meeting, upon Hercules request, Supplier shall prepare and distribute an agenda, which will incorporate the topics designated by Hercules. Supplier shall distribute such agenda in advance of each meeting so that the meeting participants may prepare for the meeting. In addition, upon Hercules request, Supplier shall record and promptly distribute minutes for every meeting for review and approval by Hercules.

(d)

Authorized User and Eligible Recipient Meetings. Supplier shall notify the Hercules Relationship Manager or his or her designee(s) in advance of scheduled meetings with Authorized Users or Eligible Recipients (other than meetings pertaining to the provision of specific Services on a day-to-day basis) and shall invite the Hercules Relationship Manager or his or her designee(s) to attend such meetings or to designate a representative to do so.

9.4 Quality Assurance and Internal Controls.

(a)

Supplier shall develop and implement Quality Assurance and internal control (e.g., financial and accounting controls, organizational controls, input/output controls, system modification controls, processing controls, system design controls, and access controls) processes and procedures, including implementing tools and methodologies, to ensure that the Services are performed in an accurate and timely manner, in accordance with (i) the Service Levels and other requirements of this Agreement, (ii) generally accepted accounting principles, (iii) accepted industry standards of leading providers of BPO/ADM services, (iv) the Laws applicable to Hercules, the Eligible Recipients and/or the Services, and (v) the industry standards described

in Section 9.4(d)) applicable to Hercules and the Eligible Recipients and the performance of the Services. Such processes, procedures and controls shall include verification, checkpoint reviews, testing, acceptance, and other procedures for Hercules to assure the quality and timeliness of Supplier’s performance.

(b)

Without limiting the foregoing, the processes, procedures and controls developed and implemented by Supplier shall require Supplier to:

(i)

Maintain a strong control environment in day-to-day operations, to assure that the following fundamental control objectives are met: (1) financial and operational information is valid, complete and accurate; (2) operations are performed efficiently and achieve effective results, consistent with the requirements of this Agreement; (3) assets are safeguarded; and (4) actions and decisions of the organization are in compliance with Laws;

(ii)

Build the following basic control activities into its work processes: (1) accountability clearly defined and understood; (2) access properly controlled; (3) adequate supervision; (4) transactions properly authorized; (5) transactions properly recorded; (6) transactions recorded in proper accounting period; (7) policies, procedures, and responsibilities documented; (8) adequate training and education; (9) adequate separation of duties; and (10) recorded assets compared with existing assets;

(iii)

Develop and execute a process to ensure periodic control self-assessments are performed with respect to all Services (such self-assessments to be performed at least quarterly unless and until Hercules approves less frequent self-assessments);

(iv)

Maintain an internal audit function sufficient to monitor the processes and Systems used to provide the Services (i.e., perform audits, track control measures, communicate status to management, drive corrective action, etc.);

(v)

Conduct investigations of suspected fraudulent activities within Supplier's organization that impact or could impact Hercules or the Eligible Recipients. Supplier shall promptly notify Hercules of any such suspected fraudulent activity and the results of any such investigation as they relate to Hercules or the Eligible Recipients. At Supplier’s request, Hercules shall provide reasonable assistance to Supplier in connection with any such investigation;

(vi)

Comply with Schedule E.8;.

(vii)

Comply with all applicable requirements and guidelines established by Hercules in order to assist Hercules to meet the requirements of the Sarbanes-Oxley Act of 2002 and implementing regulations promulgated by the United States Securities and Exchange Commission and the Public Company Accounting Oversight Board;

(viii)

Comply with the Hercules Business Practices Policy; and

(ix)

Recommend and, with Hercules' prior approval, implement revisions to the Sarbanes-Oxley compliance measures.

(c)

Supplier shall submit such processes, procedures and controls to Hercules for its review, comment and approval within thirty (30) days prior to the Commencement Date and shall use commercially reasonable efforts to finalize such processes, procedures and controls and obtain Hercules' final approval on or before the Commencement Date. Upon Hercules' approval, such processes and procedures shall be included in the Policy and Procedures Manual. Prior to the approval of such processes and procedures by Hercules, Supplier shall adhere strictly to Hercules' then current policies, procedures and controls. No failure or inability of the quality assurance procedures to disclose any errors or problems with the Services shall excuse Supplier’s failure to comply with the Service Levels and other terms of this Agreement.

(d)	Industry Standards, Certifications and Compliance. Supplier has achieved or will achieve and, to the extent relevant, will thereafter maintain certification or compliance with the following industry standards:

(i)

Type I SAS 70: The Supplier Facilities in Kolkata, India, and Bucharest Romania (Schedule O.2) will be certified as Type I SAS 70 compliant beginning in the second quarter of 2007;

(ii)

Type II SAS 70: The Supplier Facilities in Kolkata, India, Bucharest Romania, and Juarez, Mexico (Schedule O.2) will be certified as Type II SAS 70 compliant beginning in the fourth quarter of 2007;

(iii)

Sarbanes Oxley: The finance and accounting processes employed at the Supplier Facilities in Kolkata, India, Bucharest Romania, and Juarez, Mexico (Schedule O.2) will be certified in 2007 as compliant with the Sarbanes-Oxley Act of 2002 and implementing regulations promulgated by the United States Securities and Exchange Commission and the Public Company Accounting Oversight Board.

(iv)

ISO 9001:2000: The business continuity planning functions performed at the Supplier Facility in Kolkata, India (Schedule O.2) are certified as ISO 9001:2000 compliant.

(v)

Operating Leader Standard Certification (Customer Operations Performance Centre Inc., USA. (“COPC”)): As of the Effective Date, Supplier is undergoing the Operating Leader Standard Certification from COPC.

(vi)

CMMi: The Supplier Facilities in Kolkata, India, Bucharest Romania, and Juarez, Mexico (Schedule O.2) are certified as compliant with the Software Engineering Institute Capability Maturity Model Integration (CMMi) Level 5 requirements.

(vii)

BS7799: The Supplier Facility in Kolkata, India (Schedule O.2) is BS 7799 certified. The Supplier Facilities in Bucharest Romania, and Juarez, Mexico (Schedule O.2) will obtain BS 7799 certification in 2007.

(viii)

Six Sigma: The Supplier Facilities in Kolkata, India, Bucharest Romania, and Juarez, Mexico (Schedule O.2) are certified through the Six-Sigma Academy.

Supplier shall provide Hercules information regarding the foregoing certifications as reasonably requested by Hercules. If Supplier fails to maintain any of the certifications above or any assessment, audit, or re-certification report determines that Supplier is no longer meeting the requirements necessary to achieve such certifications, then Supplier shall inform Hercules of such circumstance within thirty (30) days of such failure or report being issued and promptly prepare, for Hercules' review and approval, a plan to be implemented at Supplier’s expense for ensuring compliance thereafter.

9.5 Processes, Procedures, Architecture, Standards and Planning.

(a)

Supplier Support. As requested by Hercules, Supplier shall assist Hercules on an ongoing basis in defining: (A) the standards, policies, practices, processes, procedures and controls to be adhered to and enforced by Supplier in the performance of the Services; and (B) the associated technologies, architectures, standards, products and systems to be provided, operated, managed, supported and/or used by Supplier in connection therewith (collectively, the “Hercules Standards”). Supplier also shall assist Hercules in preparing annual Strategic Plans and short-term implementation plans on an annual basis and in modifying and updating such Strategic Plans and implementation plans on a periodic basis as appropriate. The assistance to be provided by Supplier shall include: (i) active participation with Hercules representatives on permanent and ad-hoc committees and working groups addressing such issues; (ii) assessments of the then-current Hercules Standards; (iii) analyses of the appropriate direction for such Hercules Standards in light of business priorities, business strategies, competitive market forces, and changes in technology; (iv) the provision of information to Hercules regarding Supplier’s technology, business processes and telecommunications strategies for its own business; and (v) recommendations regarding standards, processes, procedures and controls and associated technology architectures, standards, products and systems. With respect to each recommendation, Supplier shall provide the following at a level of detail sufficient to permit Hercules to

make an informed business decision: (i) the projected cost to Hercules and the Eligible Recipients and cost/benefit analyses; (ii) the changes, if any, in the personnel and other resources Supplier, Hercules and/or the Eligible Recipients will require to operate and support the changed environment; (iii) the resulting impact on the total costs of Hercules and the Eligible Recipients; (iv) the expected performance, quality, responsiveness, efficiency, reliability, security risks and other service levels; and (v) general plans and projected time schedules for development and implementation. Any assistance provided by Supplier under Sections 9.5 shall be at no additional Charge beyond the Charges specified in Schedule J for the Services, unless an additional Charge has been approved by Hercules.

(b)

Hercules Authority and Supplier Compliance. Hercules shall have final authority to promulgate Hercules Standards and Strategic Plans and to modify or grant waivers from such Hercules Standards and Strategic Plans. Supplier shall (i) comply with and implement the Hercules Standards and Strategic Plans in providing the Services, (ii) work with Hercules to enforce the Hercules Standards and Strategic Plans, (iii) modify the Services as and to the extent necessary to conform to such Hercules Standards and Strategic Plans, and (iv) obtain Hercules' prior written approval for any deviations from such Hercules Standards and Strategic Plans.

(c)

Financial, Forecasting and Budgeting Support. To support Hercules' forecasting and budgeting processes, Supplier shall provide the following information regarding the costs to be incurred by Hercules and/or the Eligible Recipients in connection with the Services and the cost/benefit to Hercules and/or the Eligible Recipients associated therewith: (i) actual and forecasted utilization of Resource Units; (ii) actual and forecasted changes in the total cost or resource utilization of Hercules and the Eligible Recipients associated with changes to the environment; and (iii) opportunities to modify or improve the Services, to reduce the Charges, Pass-Through Expenses or retained expenses incurred by Hercules. Such information shall be provided at Hercules' request, and at no additional charge to Hercules, in accordance with the schedule reasonably established by Hercules.

(d)

Technology and Business Process Plan. Supplier shall develop and implement a technology and business process plan that is consistent with the Hercules Standards and Strategic Plan and that shows how Supplier shall provide the Services to enable Hercules to achieve the Strategic Plan objectives and to implement and support Hercules' BPO/ADM objectives and strategies (“Technology and Business Process Plan”). The development of the Technology and Business Process Plan will be an iterative process that Supplier shall carry out in consultation with Hercules. The timetable for finalization of the Technology and Business Process Plan shall be set each year having regard to the timetable for the Strategic Plan. Following approval by Hercules, the Technology and Business Process Plan will replace the previous plan. All the changes to the Services emerging out of the Technology and Business Process Plan shall be governed by the Change Control Procedures.

Supplier’s proposed Technology and Business Process Plan shall, among other things, include plans for: (A) refreshing Equipment and Software (consistent with the refresh cycles defined in Section 9.14); (B) adopting new technologies and business processes as part of the Technology and Business Process Evolution of the Services, as defined in this Agreement; and (C) maintaining flexibility as described in Section 9.14. In the Technology and Business Process Plan, Supplier shall also present implementation plans for the achievement of the Strategic Plan and Hercules Standards.

Supplier shall comply with the Technology and Business Process Plan at all times, unless Hercules agrees to depart from the Technology and Business Process Plan.

9.6 Change Control.

(a)

Compliance with Change Control Procedures. In making any change in the human resources, payroll, procurement, accounts payable or other standards, processes, procedures and controls or associated IT technologies, architectures, standards, products, Software, Equipment, Systems, Services or Materials provided, operated, managed, supported or used in connection with the Services or any other change that may impact the provision of the Services, each Party shall comply with the change control procedures specified in the Policy and Procedures Manual (“Change Control Procedures”).

(b)

Financial responsibility for Changes. Unless otherwise set forth in this Agreement, including specified in Schedule E, or approved in advance in accordance with Sections 4.5, 9.6(c) or otherwise, Supplier shall bear all charges, fees and costs associated with any change desired by Supplier, including all charges, fees and costs associated with (i) the design, installation, implementation, testing and rollout of such change, (ii) any modification or enhancement to, or substitution for, any impacted business process or associated Software, Equipment, System, Services or Materials, (iii) any increase in the cost to Hercules or the Eligible Recipients of operating, maintaining or supporting any impacted business process or associated Software, Equipment, System, Services or Materials, and (iv) any increase in Resource Unit usage resulting from such change.

(c)

Hercules Approval - Cost, Adverse Impact. Supplier shall make no change which may (i) increase Hercules' total cost of receiving the Services; (ii) require material changes to, or have an adverse impact on, Hercules' or an Eligible Recipient’s businesses, operations, environments, facilities, business processes, systems, software, utilities, tools or equipment (including those provided, managed, operated, supported and/or used on their behalf by Hercules Third Party Contractors); (iii) require Supplier, Hercules, the Eligible Recipients or Supplier to install a new version, release, upgrade of, or replacement for, any Software or Equipment or to modify any Software or Equipment, (iv) have a material adverse impact on the functionality, interoperability, performance, accuracy, speed, responsiveness, quality or resource efficiency of the Services; (v) have an adverse impact on the cost, either actual or planned, to Hercules of terminating all or any part of the Services or exercising its right to in-source or use third parties; (vi) requires changes to or have an adverse impact on the functionality, interoperability, performance, accuracy, speed, responsiveness, quality, cost or resource efficiency of Hercules' Retained Systems and Business Processes or (vii) violate or be inconsistent with Hercules Standards or Strategic Plans as specified in Section 9.5, without first obtaining Hercules' approval, which approval Hercules may withhold in its sole discretion. If Supplier desires to make such a change, it shall provide to Hercules a written proposal describing in detail the extent to which the desired change may affect the functionality, performance, price or resource efficiency of the Services and any benefits, savings or risks to Hercules or the Eligible Recipients associated with such change.

(d)

Hercules Legal Approval - IVR/VRU Solution. In addition to the foregoing, Supplier shall not implement or use in performing the Services an IVR or VRU solution having one or more of the following characteristics without first obtaining the approval of Hercules Chief Patent Counsel or his or her designee: (i) the entry by callers of distinct customer verification data that is compared to information stored in a database to determine if the caller is qualified to continue using the system; (ii) the IVR system provides the caller with computer generated confirmation numbers; (iii) the use by callers of temporary PINs with the ability to change the PIN; or (iv) the generation of automatic screen pops at the operator terminal based on caller-specific information entered by the caller.

(e)

Information for Exercise of Strategic Authority. In order to facilitate Hercules' strategic control pursuant to Section 9.5, Supplier shall provide Hercules with such information as Hercules shall reasonably require prior to making any proposed change. Such information shall include, at a minimum, a description of the proposed rights of Hercules and the Eligible Recipients with respect to ownership and licensing (including any related restrictions) relating to such Software, Equipment or other technology or Materials. Such description shall include the license fees, maintenance fees and/or purchase or lease terms (if any) for use of such Software, Equipment, Systems, Services or Materials by Hercules, the Eligible Recipients and their respective third party contractors upon termination or expiration of the Term and any limitations or conditions on such use.

(f)

Temporary Emergency Changes. Notwithstanding the foregoing, Supplier may make temporary changes required by an emergency if it has been unable to contact the Hercules Relationship Manager or his or her designee to obtain approval after making reasonable efforts. Supplier shall document and report such emergency changes to Hercules not later than the next business day after the change is made. Such changes shall not be implemented on a permanent basis unless and until approved by Hercules.

(g)

Implementation of Changes. Supplier shall schedule and implement all changes so as not to (i) disrupt or adversely impact the business or operations of Hercules or the Eligible Recipients, (ii) degrade the Services then being received by them, or (iii) interfere with their ability to obtain the full benefit of the Services.

(h)

Planning and Tracking. On a monthly basis, Supplier shall prepare, with Hercules' participation and approval, a rolling quarterly “look ahead” schedule for ongoing and planned changes for the next three (3) months. The status of changes shall be monitored and tracked by Supplier against the applicable schedule.

9.7 Software Currency.

(a)

Currency of Supplier Owned Software. Subject to and in accordance with Sections 6.4, 9.5, 9.6, 9.7(c), and 9.13 and Schedule J, Supplier shall maintain reasonable currency for Supplier Owned Software and provide maintenance and support for new releases and versions of such Software. At Hercules' direction, Supplier shall operate multiple releases or versions of Supplier Owned Software on a temporary basis for a reasonable period of time during a technology or business transition (e.g., a software upgrade or an acquisition) and, subject to Sections 4.4 and 11.1(f)(ii), shall do so without any increase in the Charges. For purposes of this Section, “reasonable currency” shall mean that, unless otherwise directed by Hercules, (i) Supplier shall maintain Supplier Owned Software at the then current Major Release, and (ii) Supplier shall install Minor Releases promptly or earlier, if requested by Hercules.

(b)

Currency of Third Party Software. Subject to and in accordance with Sections 6.4, 9.5, 9.6, 9.7(c), and 9.13 and Schedule J, Supplier shall maintain reasonable currency for Third Party Software for which it is financially responsible under this Agreement and provide maintenance and support for new releases and versions of Third Party Software for which it is operationally responsible. At Hercules' direction, Supplier shall operate multiple releases or versions of Third Party Software on a temporary basis for a reasonable period of time during a technology or business transition (e.g., a software upgrade or an acquisition) and, subject to Section 4.4 and 11.1(f)(ii), shall do so without any increase in the Charges. In addition, unless otherwise directed by Hercules, Supplier shall keep Third Party Software within release levels supported by the appropriate third party vendor to ensure compatibility with other Software or Equipment components of the Systems. For purposes of this Section, “reasonable currency” shall mean that, unless otherwise directed by Hercules, (i) Supplier shall maintain Third Party Software within one Major Release of the then current Major Release, and (ii) Supplier shall install Minor Releases promptly or earlier, if requested by Hercules.

(c)

Evaluation and Testing. Prior to installing a new Major Release or Minor Release, Supplier shall evaluate and test such Release to verify that it will perform in accordance with this Agreement and the Hercules Standards and Strategic Plans and that it will not (i) increase Hercules total cost of receiving the Services; (ii) have an adverse impact or require changes as described in Section 9.6(c); or (iii) violate or be inconsistent with Hercules Standards, Strategic Plans, the Technology and Business Process Plan or applicable Laws. The evaluation and testing performed by Supplier shall be at least consistent with the reasonable and accepted industry norms applicable to the performance of such Services and shall be at least as rigorous and comprehensive as the evaluation and testing usually performed by highly qualified service providers under such circumstances.

(d)

Approval by Hercules. Notwithstanding Section 9.7(a) and (b), Supplier shall confer with Hercules prior to installing any Major Release or Minor Release, shall provide Hercules with the results of its testing and evaluation of such Release and a detailed implementation plan and shall not install such Release if directed not to do so by Hercules. Where specified by Hercules, Supplier shall not install new Software releases or make other Software changes until Hercules has completed and provided formal signoff on successful user acceptance testing.

(e)

Updates by Hercules. Hercules and the Eligible Recipients shall have the right, but not the obligation, to install new releases of, replace, or make other changes to Applications Software or other Software for which Hercules is financially responsible under this Agreement.

9.8 Maintenance.

(a)

Supplier Responsibility. To the extent Supplier has operational responsibility under this Agreement, it shall maintain Equipment and Software so that they operate substantially in accordance with the Service Levels and their Specifications, including (i) maintaining Equipment in good operating condition, subject to normal wear and tear, (ii) undertaking repairs and preventive maintenance on Equipment in accordance with the

applicable Equipment manufacturer’s recommendations and requirements, and (iii) performing Software maintenance in accordance with the applicable Software supplier’s documentation, recommendations and requirements.

(b)

Out of Support Third Party Equipment and Software. For Third Party Equipment and Software no longer supported by the licensor or manufacturer for which Supplier has operational responsibility under this Agreement, Supplier shall use all commercially reasonable efforts to perform maintenance for such Equipment or Software as required to meet its obligations under this Agreement.

9.9 Efficiency and Cost Effectiveness.

Supplier shall use commercially reasonable efforts to provide the Services in the most cost-effective and efficient manner consistent with the required level of quality and performance. Without limiting the generality of the foregoing, such actions shall include:

(a)

Timing of Actions. Making adjustments in the timing of actions (consistent with Hercules priorities and schedules for the Services and Supplier’s obligation to meet the Service Levels).

(b)

Timing of Functions. Delaying or accelerating, as appropriate, the performance of non-critical functions within limits acceptable to Hercules.

(c)

Systems Optimization. Tuning or optimizing the Systems (including memory), Applications Software, databases and/or business processes to optimize performance and minimize costs.

(d)

Usage Scheduling. Controlling its use of the System and/or the Hercules data network by scheduling usage, where possible, to low utilization periods.

(e)

Alternative Technologies. Subject to Section 9.5, using alternative technologies to perform the Services.

(f)

Efficiency. Efficiently using resources for which Hercules is charged hereunder, consistent with industry norms, and compiling data concerning such efficient use in segregated and auditable form whenever possible.

9.10 Malicious Code.

Each Party shall cooperate with the other Party and shall take commercially reasonable actions and precautions consistent with Schedule E to prevent the introduction and proliferation of Malicious Code into Hercules' or an Eligible Recipient’s environment or any System used by Supplier to provide the Services. Without limiting Supplier’s other obligations under this Agreement, if Malicious Code is found in Equipment, Software or Systems provided, managed or supported by Supplier, Supplier shall, at no additional charge to Hercules, eliminate and reduce the effects of such Malicious Code and, if the Malicious Code causes a loss of operational efficiency or loss of data, to mitigate such losses and restore such data with generally accepted data restoration techniques.

9.11 Access to Specialized Supplier Skills and Resources.

Upon Hercules' request, Supplier shall provide Hercules and the Eligible Recipients with prompt access to Supplier’s specialized services, personnel and resources pertaining to BPO/ADM standards, processes and procedures and associated software, equipment and systems on an expedited basis taking into account the relevant circumstances (the “Specialized Services”). The Parties acknowledge that the provision of such Specialized Services may, in some cases, constitute New Services for which Supplier is entitled to additional compensation, but in no event shall Supplier be entitled to any additional compensation for New Services under this subsection unless the Hercules Relationship Manager and Supplier Account Manager, or their authorized designees, expressly agree upon such additional compensation or Supplier’s entitlement to additional compensation is established through the dispute resolution process. If Hercules authorizes Supplier to proceed but the Parties disagree as to whether the authorized work constitutes New Services and Hercules reasonably believes that such work is material and is required on an urgent basis, Supplier shall proceed with such work if directed by Hercules for up to sixty (60) FTE days or until such dispute is resolved. Any Charges claimed by Supplier for such work shall be subject to dispute and withholding under Section 12.4, and any disagreement with respect to such Charges shall be submitted to dispute resolution pursuant to Article 19.

9.12 Audit Rights.

(a)

Contract Records. Supplier shall, and shall cause its Affiliates and, subject to Section 9.12(e)(v), its Subcontractors to, maintain complete and accurate records of and supporting documentation for all Charges, all Hercules Data and all transactions, authorizations, changes, implementations, soft document accesses, reports, filings, returns, analyses, procedures, controls, records, data or information created, generated, collected, processed or stored by Supplier in the performance of it’s obligations under this Agreement (“Contract Records”). Supplier shall maintain such Contract Records in accordance with applicable Laws. Supplier shall retain Contract Records in accordance with Hercules' record retention policy (as such policy may be modified from time to time and provided to Supplier in writing) during the Term and any Termination Assistance Services period and thereafter through the end of the second full calendar year after the calendar year in which Supplier stopped performing Services (including Termination Assistance Services requested by Hercules under Section 4.3(b)(8)) (the “Audit Period”).

(b)

Operational Audits. During the Audit Period (as defined in Section 9.12(a), Supplier shall, and shall cause its Affiliates and, subject to Section 9.12(e)(v), its Subcontractors to, provide to Hercules (and internal and external auditors, inspectors, regulators and other representatives that Hercules may designate from time to time), including customers, vendors, licensees and other third parties to the extent Hercules or the Eligible Recipients are legally or contractually obligated to submit to audits by such entities) access at reasonable hours to Supplier Personnel, to the facilities at or from which Services are then being provided and to Supplier records and other pertinent information, all to the extent relevant to the Services and Supplier’s obligations under this Agreement. Such access shall be provided for the purpose of performing audits and inspections to (i) verify the integrity of Hercules Data, (ii) examine the systems that process, store, support and transmit that data, (iii) examine the internal controls (e.g., financial controls, human resource controls, organizational controls, input/output controls, system modification controls, processing controls, system design controls, and access controls) and the security, disaster recovery and back-up practices and procedures; (iv) examine Supplier’s performance of the Services; (v) verify Supplier’s reported performance against the applicable Service Levels; (vi) examine Supplier’s measurement, monitoring and management tools; and (vii) enable Hercules and the Eligible Recipients to meet applicable legal, regulatory and contractual requirements (including those associated with the Sarbanes-Oxley Act of 2002 and the implementing regulations promulgated by the United States Securities and Exchange Commission and the Public Company Accounting Oversight Board), in each case to the extent applicable to the Services. Supplier shall (i) provide any assistance reasonably requested by Hercules or its designee in conducting any such audit, including installing and operating audit software, (ii) make requested personnel, records and information available to Hercules or its designee, and (iii) in all cases, provide such assistance, personnel, records and information in an expeditious manner to facilitate the timely completion of such audit.

(c)

Financial Audits. During the Audit Period (as defined in Section 9.12(a), Supplier shall, and shall cause its Affiliates and, subject to Section 9.12(e)(v), its Subcontractors to, provide to Hercules (and internal and external auditors, inspectors, regulators and other representatives that Hercules may designate from time to time, including customers, vendors, licensees and other third parties to the extent Hercules or the Eligible Recipients are legally or contractually obligated to submit to audits by such entities) access at reasonable hours to Supplier Personnel and to Contract Records and other pertinent information to conduct financial audits, all to the extent relevant to the performance of Supplier’s obligations under this Agreement. Such access shall be provided for the purpose of performing audits and inspections to (i) verify the accuracy and completeness of Contract Records, (ii) verify the accuracy and completeness of Charges and any Pass-Through Expenses and Out-of-Pocket Expenses, (iii) examine the financial controls, processes and procedures utilized by Supplier in performing the Services, and (iv) enable Hercules and the Eligible Recipients to meet applicable legal, regulatory and contractual requirements, in each case to the extent applicable to the Services and/or the Charges for such Services. Supplier shall (i) provide any assistance reasonably requested by Hercules or its designee in conducting any such audit, (ii) make requested personnel, records and information available to Hercules or its designee, and (iii) in all cases, provide such assistance,

personnel, records and information in an expeditious manner to facilitate the timely completion of such audit. If any such audit reveals an overcharge by Supplier, and Supplier does not successfully dispute the amount questioned by such audit in accordance with Article 19, Supplier shall promptly pay to Hercules the amount of such overcharge, together with interest from the date of Supplier’s receipt of such overcharge at the lesser of annual USD LIBOR plus one and one-half percent (1.5%) per annum or the maximum rate allowed by applicable Law

(d)

Audit Assistance. Hercules and certain Eligible Recipients may be subject to regulation and audit by governmental bodies, standards organizations, other regulatory authorities, customers or other parties to contracts with Hercules or an Eligible Recipient under applicable Laws, rules, regulations, standards or contract provisions. If any such Entity exercises its right to examine or audit Hercules' or an Eligible Recipient’s books, records, documents or accounting practices and procedures pursuant to such Laws, rules, regulations, standards or contract provisions, Supplier shall provide all assistance requested by Hercules or the Eligible Recipient in responding to such audits or requests for information and shall do so in an expeditious manner to facilitate the prompt closure of such audit or request.

In addition, Hercules and certain Eligible Recipients will be subject to periodic financial and internal controls audits by independent registered public accounting firms. Supplier shall provide all assistance requested by Hercules, the Eligible Recipient and/or such accounting firms in responding to such audits or requests for information and shall do so in an expeditious manner to facilitate the prompt closure of such audit or request.

(e)

General Procedures.

(i)

Notwithstanding the intended breadth of Hercules' audit rights, Hercules shall not be given access to (A) the Confidential Information of other Supplier customers, (B) Supplier locations that are not related to Hercules, the Eligible Recipients or the Services, or (C) Supplier’s internal costs, except to the extent such costs are the basis upon which Hercules is charged (e.g., reimbursable expenses, Out-of-Pocket Costs, Pass-Through Expenses or cost-plus Charges) and/or are necessary to calculate the applicable variable Charges.

(ii)

In performing audits, Hercules shall endeavor to avoid unnecessary disruption of Supplier’s operations and unnecessary interference with Supplier’s ability to perform the Services in accordance with the Service Levels.

(iii)

Following any audit, Hercules shall conduct (in the case of an internal audit), or request its external auditors or examiners to conduct, an exit conference with Supplier to obtain factual concurrence with issues identified in the review.

(iv)

Hercules shall be given adequate private workspace in which to perform an audit, plus access to photocopiers, telephones, facsimile machines, computer hook-ups, and any other facilities or equipment needed for the performance of the audit.

(v)

If, with respect to any Subcontractor (other than a Shared Subcontractor), Supplier is unable to obtain the audit and other rights described in this Section 9.12, it shall so notify Hercules as part of the approval process described in Section 9.13(a), and shall not use such Subcontractor without Hercules’ approval. If Hercules consents to Supplier’s use of any such Subcontractor under these circumstances, the Subcontractor shall be so identified on Schedule D.

(f)

Supplier Internal Audit. If Supplier determines as a result of its own internal audit that it has overcharged Hercules, then Supplier shall promptly pay to Hercules the amount of such overcharge, together with interest from the date of Supplier’s receipt of such overcharge at the lesser of annual USD LIBOR plus one and one-half percent (1.5%) per annum or the maximum rate allowed by applicable Law.

(g)

Supplier Response. Supplier and Hercules shall meet promptly upon the completion of an audit conducted pursuant to this Section 9.12 (i.e., an exit interview) and/or the issuance of an interim or final report to Supplier and Hercules following such an audit. Supplier will respond to each exit interview and/or audit

report in writing within thirty (30) days, unless a shorter response time is specified in such report. Supplier and Hercules shall develop and agree upon an action plan to promptly address and resolve any deficiencies, concerns and/or recommendations identified in such exit interview or audit report and Supplier, at its own expense, shall undertake remedial action in accordance with such action plan and the dates specified therein to the extent necessary to comply with Supplier’s obligations under this Agreement.

(h)

Supplier Response to Government Audits. If an audit by a governmental body, standards organization or regulatory authority having jurisdiction over Hercules, an Eligible Recipient or Supplier results in a finding that Supplier is not in compliance with any applicable Law or standard, including any generally accepted accounting principle, or any other audit requirement relating to the performance of its obligations under this Agreement, Supplier shall, within the time period specified by such auditor, address and resolve the deficiency(ies) identified by such governmental body, standards organization or regulatory authority, in the manner approved by Hercules. Supplier shall do so at its own expense if and to the extent such audit deficiency or finding of non-compliance results from Supplier’s failure to comply with its obligation under this Agreement.

(i)

SAS70 Audit. In addition to its other obligations under this Section 9.12, Supplier shall cause a Type II Statement of Auditing Standards (“SAS”) 70 audit (or equivalent audit) to be conducted by an independent auditor on an annual basis for each Supplier facility at, from or through which Services are provided to Hercules and/or the Eligible Recipients or Hercules Data is transmitted or stored. During the planning of each such audit, Supplier shall provide Hercules with reasonable information as to the anticipated scope and timing of such audit, shall accord Hercules a reasonable opportunity to communicate any reasonable concerns it may have regarding such matters and shall give due consideration to such concerns in finalizing the plans for such audit. Unless otherwise agreed by the Parties, such audit shall be conducted so as to result in a final audit report dated September 1 or later each calendar year. Supplier shall provide Hercules with a report from each SAS 70 to facilitate periodic compliance reporting by Hercules and the Eligible Recipients under the Sarbanes-Oxley Act of 2002 (and implementing regulations promulgated by the United States Securities and Exchange Commission and Public Company Accounting Oversight Board) and comparable Laws in other jurisdictions. To the extent the resulting audit report is relevant to Hercules and/or the Eligible Recipients, Supplier shall provide a copy of such report to Hercules and its independent auditors for review and comment as soon as reasonably possible and in all events within thirty (30) days of completion. Supplier shall respond to such report in accordance with Section 9.12(g).

To the extent Hercules requests that, in addition to the Type II SAS 70 audit described above, Supplier conduct a Hercules-specific Type II SAS 70 audit, Supplier shall do so at Hercules' expense (provided, Supplier notifies Hercules of such expense, obtains Hercules' approval, and uses commercially reasonable efforts to minimize such expense). If, however, Supplier undertakes additional or different Type II SAS 70 audits (or equivalent audits) of Supplier Facilities at, from or through which Services are provided to Hercules and/or the Eligible Recipients (other than customer-specific audits requested and paid for by other Supplier customers), Supplier shall accord Hercules the rights described in the preceding paragraph with respect to such audits.

(j)

Audit Costs.

(i)

Except as provided in Section 9.12(j)(ii) below, Supplier, its Affiliates and, subject to Section 9.12(e)(v), its Subcontractors shall provide the Services described in this Section 9.12 as part of the Monthly Base Charges and at no additional Charge to Hercules.

(ii)

As part of the Monthly Base Charges, Supplier shall provide, at Hercules’ request, up to six hundred (600) FTE hours of audit assistance for audits initiated by Hercules in any Contract Year (“Baseline Audit FTEs”). The Hercules Contract Manager or his or her designee shall request, define and set the priority for such audit assistance. Supplier shall report monthly on the level of effort expended by Supplier in the performance of such audit assistance and shall not exceed the Baseline Audit FTEs without Hercules’ prior approval. Subject to Sections 9.12(j)(iii), (iv) and (v), if Hercules authorizes Supplier to exceed the Baseline Audit FTEs in any Contract Year, Hercules shall either

pay Supplier for such additional FTE hours at the rates specified in Schedule J or apply such additional FTE hours against the Baseline Project FTEs described in Section 11.8(a).

(iii)

Notwithstanding Section 9.12(j)(ii), to the extent the level of audit assistance requested by Hercules and provided by Supplier Personnel in connection with any audit initiated by Hercules is, in the aggregate, eight (8) FTE hours or less, there shall be no additional Charge to Hercules for such assistance and such FTE hours shall not be counted against the Baseline Audit FTE pool described in Section 9.12(j)(ii) above.

(iv)

Notwithstanding Section 9.12(j)(ii), to the extent the audit assistance requested by Hercules can be provided by Supplier using personnel already assigned to Hercules hereunder without impacting Service Levels, there will be no additional charge to Hercules for such audit assistance. If the audit assistance requested by Hercules cannot be provided by Supplier using such personnel then assigned to Hercules without impacting Service Levels, Hercules, in its sole discretion, may forego or delay any work activities or temporarily or permanently adjust the work to be performed by Supplier, the schedules associated therewith or the Service Levels to permit the performance of such audit assistance using personnel already assigned to perform the Services.

(v)

Notwithstanding Section 9.12(j)(ii), there will be no additional charge to Hercules for audit assistance if, in performing such an audit, Hercules uncovers evidence that Supplier has breached any material obligation(s) under this Agreement.

9.13 Subcontractors.

(a)

Use of Subcontractors. In subcontracting any of its responsibilities under this Agreement, Supplier shall comply strictly with this Section 9.13. Prior to entering into a subcontract with respect to the Services, Supplier shall (i) at Hercules' request, forward to Hercules a copy of the proposed subcontract, or (in Hercules' reasonable discretion) a detailed description of the scope and material terms (other than pricing terms) of the proposed subcontract; (ii) give Hercules reasonable prior notice of the subcontract, specifying the components of the Services affected, the scope of the proposed subcontract, the identity and qualifications of the proposed Subcontractor, the reasons for subcontracting the work in question, the location of the Subcontractor facilities from which the Services will be provided, the extent to which the subcontract will be dedicated, and the Subcontractor’s willingness to grant the rights described in Section 6.4(c) upon expiration or termination; and (iii) obtain Hercules' prior approval of the proposed Subcontractor, other than Subcontractors that qualify as Shared Subcontractors in accordance with Section 9.13(c) below.

(b)

Right to Revoke Approval. Hercules also shall have the right during the Term to revoke its prior approval of a Subcontractor and direct Supplier to promptly replace such Subcontractor, at no additional cost to Hercules, if the Subcontractor’s performance is materially deficient or if there are other reasonable grounds for removal. If directed to do so, Supplier shall remove and replace such Subcontractor as soon as possible. Supplier shall continue to perform its obligations under the Agreement, notwithstanding the removal of the Subcontractor. Hercules shall have no responsibility for any termination charges or cancellation fees that Supplier may be obligated to pay to a Subcontractor as a result of the removal of such Subcontractor at Hercules' request or the withdrawal or cancellation of the Services then performed by such Subcontractor as permitted under this Agreement.

(c)

Shared Subcontractors. Notwithstanding Sections 9.13(a) and (b), Supplier may, in the ordinary course of business, enter into subcontracts with total estimated annual revenue of less than $250,000 per subcontract or $500,000 in the aggregate (i) for third party services or products that are not a material portion of the Services, that are not exclusively dedicated to Hercules and that do not include regular direct contact with Hercules or Eligible Recipient personnel or the performance of services at Hercules Sites, or (ii) with temporary contract labor, including temporary personnel firms providing such labor (collectively, “Shared Subcontractors”); provided, that such Shared Subcontractors possess the training and experience, competence and skill to perform the work in a skilled and professional manner. Supplier shall not be required to obtain Hercules' prior approval of Shared Subcontractors. If, however, Hercules expresses dissatisfaction with the services or products of a Shared Subcontractor, Supplier shall work in good faith to

resolve Hercules' concerns on a mutually acceptable basis and, at Hercules request, replace such Shared Subcontractor at no additional cost to Hercules.

(d)

Supplier Responsibility. Unless otherwise approved by Hercules, the terms of any subcontract must be consistent with this Agreement. Notwithstanding the terms of the applicable subcontract, the approval of such Subcontractor by Hercules or the availability or unavailability of Subcontractor insurance, Supplier shall be and remain responsible and liable for any failure by any Subcontractor or Subcontractor personnel to perform in accordance with this Agreement or to comply with any duties or obligations imposed on Supplier under this Agreement to the same extent as if such failure to perform or comply was committed by Supplier or Supplier employees.

9.14 Technology and Business Process Evolution.

(a)

Obligation to Evolve. Supplier acknowledges and agrees that its current technologies and business processes shall continue to evolve and change over time, and at a minimum, shall remain consistent with the best practices of leading providers of BPO/ADM services and the business and BPO/ADM objectives and competitive needs of Hercules and the Eligible Recipients. Subject to Section 9.5, Supplier shall provide the Services using current technologies and business processes that will enable Hercules and the Eligible Recipients to take advantage of advances in the industry and support their efforts to maintain competitiveness in the markets in which it competes. The impact of any such technology transformation shall be jointly accessed by the Parties through the Change Control Procedures.

(b)

Annual Technology and Business Process Audit. Hercules may elect to conduct an annual technology and business process audit to benchmark Supplier’s then current technologies and business processes against the best practices of leading providers of BPO/ADM services. If any such audit reveals that the technologies and business processes then utilized by Supplier are not at the level of “industry best practice,” then Hercules and the Supplier shall review the results of the audit and promptly establish and implement a plan to implement identified best practices.

(c)

Obligation to Propose Technology and Business Process Evolutions. Supplier shall identify and propose the implementation of Technology and Business Process Evolutions that are likely to: (i) improve the efficiency and effectiveness of the Services (including cost savings); (ii) improve the efficiency and effectiveness of the BPO/ADM services and functions performed by or for Hercules and the Eligible Recipients at or from Hercules facilities; (iii) result in cost savings or revenue increases to Hercules and the Eligible Recipients in areas of their business outside the Services; (iv) enhance the ability of Hercules and the Eligible Recipients to conduct their businesses and serve their customers; and (v) achieve the objectives of Hercules and the Eligible Recipients faster and/or more efficiently than the then current strategies. Subject to its non-disclosure obligation under other customer contracts, Supplier shall obtain information regarding Technology and Business Process Evolutions from other customer engagements and shall communicate such information to Hercules on an ongoing basis.

(d)

Supplier Briefings and Technology and Business Process Monitoring. Supplier shall routinely and regularly monitor and analyze Technology and Business Process Evolutions of possible interest or applicability to Hercules and the Eligible Recipients. At least semi-annually, Supplier shall meet with Hercules to formally brief Hercules regarding such Technology and Business Process Evolutions. Such briefing shall include Supplier’s assessment of the business impact, performance improvements and cost savings associated with such Technology and Business Process Evolutions. Where requested by Hercules, Supplier shall develop and present to Hercules proposals for: (i) implementing Technology and Business Process Evolutions or (ii) changing the direction of Hercules' then current strategy.

(e)

Supplier Developed Advances. If Supplier develops technological advances in or changes to the BPO/ADM business processes and services and associated technologies used to provide the same or substantially similar services to other Supplier customers or Supplier develops new or enhanced processes, services, software, tools, products or methodologies to be offered to such customers (collectively, “New Advances”), Supplier shall, subject to Section 4.4 and to the extent applicable, (i) offer Hercules the opportunity to serve as a pilot customer in connection with the implementation of such New Advances; and

(ii)

if Hercules declines such opportunity, offer Hercules access to such New Advances and the opportunity to be an early adaptor of such New Advances.

(f)

Flexibility. Supplier shall make commercially reasonable efforts to ensure that the technologies and business process strategies it employs to provide the Services meet industry standards and are flexible enough to allow integration with new technologies or business processes, or significant changes in Hercules' or an Eligible Recipient's business, BPO/ADM and information technology objectives and strategies. For example, Equipment must have sufficient scalability and be sufficiently modular to allow integration of new technologies without the need to replace whole, or significant parts of, systems or business processes (e.g., made to be a one-to-many model) to enable Hercules' and/or the Eligible Recipients' business to become more scalable and flexible.

(g)

Equipment Implementation and Refresh. Supplier shall be fully responsible for the implementation of new Equipment in the ordinary course of Technology and Business Process Evolution. Supplier shall refresh all Equipment in accordance with the defined refresh strategies, as set out in the Technology and Business Process Plan, and as necessary to provide the Services in accordance with the Service Levels and satisfy its other obligations under this Agreement. If Supplier is aware that these strategies differ from generally accepted practice (or there are any other areas of concern in relation to such strategies) it shall provide Hercules with notice of that fact and, upon request, provide Hercules with further information as to how to more closely align the strategies with generally accepted practice.

(h)

Software Implementation and Refresh. Supplier shall be fully responsible for the implementation of new or changed Software, tools and methodologies in the ordinary course of Technology and Business Process Evolution. Supplier shall: (i) refresh Software in accordance with Section 9.7 of this Agreement and the Technology and Business Process Plan; and (ii) provide training to Hercules personnel regarding the use of any new or changed Software, tools and methodologies.

(i)

Included in Charges. Supplier shall deploy, implement and support Technology and Business Process Evolution and New Advances throughout the Term and shall be included in the Monthly Base Charges except as provided below:

(i)

Supplier shall be financially responsible for the capital cost associated with Technology and Business Process Evolution and New Advances only for categories of Equipment, Software and other assets as to which such responsibility is allocated to Supplier in Schedule J.1. Hercules shall be financially responsible for the capital cost associated with Technology and Business Process Evolution and New Advances for categories of Equipment, Software and other assets as to which such responsibility is allocated to Hercules in Schedule J.1;

(ii)

The effort associated with the implementation of Technology and Business Process Evolution and New Advances shall be included in the Monthly Base Charges unless and to the extent (A) the Technology and Business Process Evolution or New Advance is considered a New Service pursuant to Section 4.4, or (B) Hercules requests that it be implemented more quickly than the established refresh schedule, and in each case, only if and to the extent additional Supplier Personnel and resources are required to do so in the desired timeframe; and

(iii)

The Parties acknowledge and agree that Supplier shall be entitled to charge for New Advances to the extent they constitute a standalone service offering or software product that is marketed as such to commercial customers generally (provided Supplier notifies Hercules of such additional charge and obtains Hercules approval before implementing the New Advance, and provided further that the price for such New Advance is no higher than the price it is offered generally to other preferred commercial customers).

9.15 Network Configuration Data.

Supplier (i) shall provide Hercules (and Hercules Third Party Contractors) with network configuration data with respect to the network provided and used by Supplier to provide Services to Hercules and/or the Eligible Recipients;

and (ii) hereby grants Hercules (and Hercules Third Party Contractors) the right to use such data in connection with the performance of ancillary services (e.g., security reviews or audits) or the exercise of Hercules' other rights under this Agreement.

10 HERCULES RESPONSIBILITIES

10.1 Responsibilities.

In addition to Hercules' responsibilities as expressly set forth elsewhere in this Agreement, Hercules shall be responsible for the following:

(a)

Hercules Relationship Manager. Hercules shall designate one (1) individual to whom all Supplier communications concerning this Agreement may be addressed (the “Hercules Relationship Manager”), who shall have the authority to act on behalf of Hercules and the Eligible Recipients in all day-to-day matters pertaining to this Agreement. Hercules may change the designated Hercules Relationship Manager from time to time by providing notice to Supplier. Additionally, Hercules will have the option, but will not be obligated, to designate additional representatives who will be authorized to make certain decisions (e.g., regarding emergency maintenance) if the Hercules Relationship Manager is not available.

(b)

Cooperation. Hercules shall cooperate with Supplier by, among other things, making available, as reasonably requested by Supplier, management decisions, information, approvals and acceptances so that Supplier may accomplish its obligations and responsibilities hereunder.

(c)

Requirement of Writing. To the extent Supplier is required under this Agreement to obtain Hercules' approval, consent or agreement, such approval, consent or agreement shall be in writing and shall be signed by or directly transmitted by electronic mail from the Hercules Relationship Manager or an authorized Hercules representative. Notwithstanding the preceding sentence, the Hercules Relationship Manager may agree in advance in writing that as to certain specific matters oral approval, consent or agreement will be sufficient.

10.2 Savings ClAuse.

Supplier’s failure to perform its responsibilities under this Agreement or to meet the Service Levels shall be excused if and to the extent such Supplier non-performance is caused by (i) the wrongful or tortious actions of Hercules, an Eligible Recipient or a Hercules Third Party Contractor performing obligations on behalf of Hercules under this Agreement (unless and to the extent, as to Hercules Third Party Contractors, such failure is attributable to Supplier’s failure to properly manage such Hercules Third Party Contractor), or (ii) the failure of Hercules, an Eligible Recipient or such a Hercules Third Party Contractor to perform Hercules' expressly specified obligations under this Agreement, but only if (A) Supplier immediately notifies Hercules of such wrongful or tortious action or failure to perform and its inability to perform under such circumstances, (B) Supplier provides Hercules with every reasonable opportunity to correct such wrongful or tortious action or failure to perform and thereby avoid such Supplier non-performance, (C) Supplier identifies and pursues all commercially reasonable means to avoid or mitigate the impact of such wrongful or tortious action or failure to perform, (D) Supplier uses commercially reasonable efforts to perform notwithstanding such wrongful or tortious action or failure to perform, and (E) Supplier conducts a Root Cause Analysis and thereby demonstrates that such wrongful or tortious action or failure to perform is the cause of Supplier’s non-performance. Supplier acknowledges and agrees that the circumstances described in this Section 10.2, together with those described in Section 4.3 and Section 18.2 of this Agreement and Section 17 of Schedule G, are the only circumstances in which its failure to perform its responsibilities under this Agreement will be excused and that Supplier will not assert any other act or omission of Hercules or the Eligible Recipients as excusing any such failure on Supplier’s part.

11 CHARGES

11.1 General.

(a)

Payment of Charges. In consideration of Supplier’s performance of the Services, Hercules agrees to pay Supplier the applicable Charges set forth in Schedule J beginning as of the Commencement Date or, if later,

the date on which Supplier assumes responsibility for the applicable Services. Supplier shall continually seek to identify methods of reducing such Charges and will notify Hercules of such methods and the estimated potential savings associated with each such method.

(b)

No Additional Charges. The Charges for the Services are set forth in Schedule J and there are no separate or additional charges for such Services. Any costs incurred by Supplier prior to the Commencement Date are included in the Charges as set forth in Schedule J and are not to be separately paid or reimbursed by Hercules.

(c)

Incidental Expenses. Supplier acknowledges that, except as expressly provided otherwise in this Agreement, expenses that Supplier incurs in performing the Services (including management, travel and lodging, document reproduction and shipping, desktop Equipment and other office Equipment required by Supplier Personnel, and long-distance telephone) are included in Supplier’s charges and rates set forth in this Agreement. Accordingly, such Supplier expenses are not separately reimbursable by Hercules unless Hercules has agreed in advance and in writing to reimburse Supplier for the expense.

(d)

Proration. Periodic charges under this Agreement are to be computed on a calendar month basis, and shall be prorated for any partial month on a calendar day basis.

(e)

Charges for Contract Changes. Unless otherwise agreed, changes in the Services (including changes in the Hercules Standards, Strategic Plans, Technology and Business Process Plans, business process, Software, Equipment and Systems) and changes in the rights or obligations of the Parties under this Agreement (collectively, “Contract Changes”) shall result in changes in the applicable Charges only if and to the extent (i) the Agreement expressly provides for a change in the Supplier Charges in such circumstances; (ii) the agreed upon Charges or pricing methodology expressly provides for a price change in such circumstances (for example, Schedule J specifies the number of FTEs or hours of coverage to be provided for the quoted price, or defines a Resource Unit rate for increased or decreased usage above or below the applicable Resource Baseline); or (iii) the Contract Change meets the definition of Billable Project or New Services and additional Charges are applicable in accordance therewith. Notwithstanding the foregoing, if a Contract Change causes a material increase or decrease in the number of billable Resource Units without a commensurate increase or decrease in the level of effort, resources or expense associated with the performance of the applicable Service, the Parties will discuss in good faith appropriate adjustments to the Resource Baselines and associated ARC and RRC rates as necessary to reflect the change in the number of Resource Units, but the Monthly Base Charges and ARC and RRC rates will be modified in connection therewith only if and to the extent such Contract Change results in a material change in the level of effort, resources or expense required to perform such Service.

(f)

Eligible Recipient Services.

(i)

Eligible Recipients. Supplier shall provide the Services to Eligible Recipients designated by Hercules. To the extent a designated Eligible Recipient will receive less than all of the Services, Hercules shall identify the categories of Services to be provided by Supplier to such Eligible Recipient.

(ii)

New Eligible Recipients. From time to time Hercules may request that Supplier provide Services to Eligible Recipients not previously receiving such Services (provided that, if the new Eligible Recipient is a Direct Supplier Competitor, the Parties shall confer in good faith regarding Supplier's competitive concerns and possible means of addressing such concerns, including the possibility of unwinding the relationship). Except as provided in Section 4.4 or otherwise agreed by the Parties, such Services shall be performed in accordance with the terms, conditions and prices (excluding any non-recurring transition or start-up activities specific to such Eligible Recipients) then applicable to the provisions of the same Services to existing Eligible Recipients.

(iii)

Existing Supplier Customer. To the extent Hercules or an Eligible Recipient acquires an Entity such that it is also an Eligible Recipient and such Entity has an existing contract with Supplier for BPO/ADM services, Hercules may, in its discretion, designate such Entity as an Eligible Recipient

under this Agreement and terminate the other contract for convenience or terminate this Agreement and the applicable Work Statements for convenience and roll the Service then being provided hereunder under the other contract. In either event, Supplier shall reduce and/or rollover to the extent possible the applicable termination charges and/or wind-down expenses Hercules would otherwise be obligated to pay in connection with such a termination. Supplier shall require Hercules to pay only unavoidable wind-down expenses (as defined in Section 2(a) or (b) of Schedule N and unamortized balance sheet items or other miscellaneous termination charges (as defined in Section 2(c) of Schedule N, unless and to the extent such items are rolled into the applicable termination charges under the surviving contract.

(iv)

Election Procedure. Within ninety (90) days after the consummation of a transaction described in clause (c) or (d) within the definition of Eligible Recipients in Schedule A, Hercules shall elect, on behalf of the Eligible Recipient in question, either (i) that such Eligible Recipient shall continue to obtain some or all of the Services subject to and in accordance with the terms and conditions of this Agreement and the applicable Work Statement(s) for up to twenty-four (24) months and shall thereafter be entitled to Termination Assistance Services pursuant to Section 4.3, or (ii) that the Term shall be terminated as to such Eligible Recipient with respect to some or all the Services as of a specified date, subject to its receipt of Termination Assistance Service pursuant to Section 4.3. If no election is made within such ninety (90) day period, the Term shall be terminated as to such Eligible Recipient with respect to all Services, subject to its receipt of Termination Assistance Services pursuant to Section 4.3

11.2 Pass-Through Expenses.

(a)

Procedures and Payment. Unless otherwise agreed by the Parties, Hercules shall pay all Pass-Through Expenses directly to the applicable vendors following review, validation and approval of such Pass-Through Expenses by Supplier. No new Pass-Through Expenses may be added without Hercules' prior consent, which it may withhold in its sole discretion. Before submitting any Pass-Through Expenses for payment, Supplier shall (i) review and validate the invoiced charges, (ii) identify any errors or omissions, and (iii) communicate with the applicable vendor to correct any errors or omissions, resolve any questions or issues and obtain any applicable credits, rebates, discounts or other incentives for Hercules. Supplier shall deliver to Hercules the original vendor invoice, together with any documentation supporting such invoice and a statement that Supplier has reviewed and validated the invoiced charges, within fifteen (15) days after Supplier’s receipt thereof; provided that, if earlier, Supplier shall use commercially reasonable efforts to deliver such invoice, documentation and statement at least five (5) business days prior to the date on which payment is due; and provided further that, if it is not possible to deliver such invoice, documentation and statement at least five (5) business days prior to the due date, Supplier shall promptly notify Hercules and, at Hercules' option, either request additional time for review and validation or submit the invoice for payment subject to subsequent review and validation. If the vendor offers a discount for payment prior to a specified date, Supplier shall use commercially reasonable efforts to deliver such invoice and associated documentation to Hercules at least five (5) days prior to such date. In addition, during the last month of each calendar quarter, Supplier shall use commercially reasonable efforts to deliver all such invoices and associated documentation to Hercules by the end of the month and, to the extent that is not possible, Supplier shall provide Hercules with information sufficient to accrue the applicable expenses on or before the end of such month. To the extent Supplier fails to comply with its obligations hereunder, it shall be financially responsible for any discounts lost or any late fees or interest charges incurred by Hercules and/or the Eligible Recipients.

(b)

Efforts to Minimize. Supplier will continually seek to identify methods of reducing and minimizing Hercules' retained and Pass-Through Expenses and will notify Hercules of such methods and the estimated potential savings associated with each such method.

11.3 Reserved

11.4 Taxes.

The Parties’ respective responsibilities for taxes arising under or in connection with this Agreement shall be as follows:

(a)

Income Taxes. Each Party shall be responsible for its own Income Taxes.

(b)

Sales, Use and Property Taxes. Each Party shall be responsible for any sales, lease, use, personal property, stamp, duty or other such taxes on Equipment, Software or property it owns or leases from a third party, including any lease assigned pursuant to this Agreement, and/or for which it is financially responsible under this Agreement.

(c)

Reserved.

(d)

Taxes on Goods or Services Used by Supplier. Supplier shall be responsible for all sales, service, value-added, lease, use, personal property, excise, consumption, and other taxes and duties, including VAT, payable by Supplier on any goods or services used or consumed by Supplier in providing the Services (including services obtained from Subcontractors) where the tax is imposed on Supplier’s acquisition or use of such goods or services and the amount of tax is measured by Supplier’s costs in acquiring or procuring such goods or services and not by Hercules' cost of acquiring such goods or services from Supplier.

(e)

Service Taxes.

(i)

Hercules shall be financially responsible for all Service Taxes existing as of the Effective Date assessed against either Party on the Services as a whole, or on any particular Service, by a Tax Authority in a jurisdiction in which Hercules and/or the Eligible Recipients are physically located and receive the Services (“Hercules Service Taxes”). If new or higher Hercules Service Taxes become applicable to the Services as a result of either Party moving all or part of its operations to a different jurisdiction (e.g., Hercules opening a new office, Supplier relocating performance of Services to a shared service center on its initiative and not at the direction of Hercules or either Party assigning this Agreement to an Affiliate) the Party initiating such move shall be financially responsible for such new or higher Hercules Service Taxes, unless otherwise mutually agreed. If new or higher Hercules Service Taxes become applicable to such Services after the Effective Date for any other reason (e.g., tax law changes, but not volume changes) and such Service Taxes are not fully recoverable by Hercules, the Parties shall negotiate in good faith and diligently seek to agree upon legally permissible means of avoiding or minimizing such new or higher Hercules Service Taxes and/or an allocation or sharing of financial responsibility for such additional Hercules Service Taxes. If the Parties are unable to agree upon such measures within thirty (30) days, and the cumulative monthly impact of all new or higher Service Taxes for which Hercules is financially responsible will, in the aggregate, exceed three percent (3%) of the monthly Charges, Hercules may elect to terminate the Agreement in its entirety, or to terminate any portions impacted by such new or additional Service Taxes. If Hercules elects to terminate on this basis, Hercules shall pay a Termination Charge equal to fifty percent (50%) of the Termination Charge it would have been obligated to pay under Schedule N if it had terminated for convenience under Section 20.2.

(ii)

Supplier shall be financially responsible for all Service Taxes assessed against either Party on the provision of the Services as a whole, or on any particular Service, by a Tax Authority in a jurisdiction from which such Services are provided by Supplier, provided such Service Taxes are not assessed as a result of the presence in such jurisdiction of the Hercules Site(s) to which such Services are provided, and only to the extent such Service Taxes are not fully recoverable by Hercules (“Supplier Service Taxes”).

(iii)

If required under applicable Laws, Supplier shall invoice Hercules for the full amount of the Service Taxes and then credit or reimburse Hercules for that portion of such Service Taxes for which Supplier is financially responsible under this provision.

(f)

Withholding.

(i)

Any withholding tax or other tax of any kind that Hercules is required by applicable Law to withhold and pay on behalf of Supplier with respect to amounts payable to Supplier under this Agreement shall be deducted from said amount prior to remittance to Supplier. Hercules will provide to Supplier reasonable assistance, which shall include the provision of documentation as required by revenue authorities, to enable Supplier to claim exemption from or obtain a repayment of such withheld taxes and will, upon request, provide Supplier with a copy of the withholding tax certificate.

(ii)

Supplier represents and warrants that Hercules is not required to withhold under the Laws of any of the applicable jurisdictions and/or that Supplier possesses an exemption from such withholding and will timely provide Hercules with documentation evidencing such exemption, including any form or other documentation upon which Hercules is required to obtain or upon which it is entitled to rely in order not to be required to withhold in any such jurisdiction. If and to the extent the failure to withhold is challenged by an applicable Tax Authority or otherwise determined to be incorrect, Supplier shall indemnify Hercules and its Affiliates and the Eligible Recipients (and their respective officers, directors, employees, agents, representatives, successors, and assigns ) in accordance with Section 17.1(f) and shall be financially responsible for all such withholding taxes, interest and penalties that in such circumstances shall be applicable.

(g)

Telecommunication Surcharges or User Fees. To the extent Hercules is responsible under Schedule J for telecommunication surcharges or user fees imposed by government authorities and associated with the Services and the allocation of such fees or surcharges is within Supplier’s or its Subcontractors’ discretion, Supplier and its Subcontractors shall act fairly and equitably in allocating such fees and surcharges to Hercules, and Hercules and the Eligible Recipients shall not receive more than a proportionate share of such fees and surcharges. In addition, in the event any such fee or surcharge for which Hercules or an Eligible Recipient is responsible is subsequently reduced or vacated by the appropriate regulatory authority or court of competent jurisdiction, Supplier shall seek on behalf of Hercules a refund of any overpayment of such fee or surcharge by Hercules or the Eligible Recipient.

(h)

Notice of New Taxes and Charges. Supplier shall promptly notify Hercules when it becomes aware of any new taxes or other charges (including changes to existing taxes or charges) to be passed through and/or collected by Hercules under this Section. Such notification (which may be separate from the first invoice reflecting such taxes or other charges) shall contain a detailed explanation of such taxes or charges, including the effective date of each new tax or charge.

(i)

Efforts to Minimize Taxes. Supplier shall cooperate fully with Hercules to enable Hercules to more accurately determine its own tax liability and to minimize such liability to the extent legally permissible. Supplier’s invoices shall separately state the Charges that are subject to taxation and the amount of taxes included therein. Each Party will provide and make available to the other any resale certificates, information regarding out-of-state or out-of-country sales or use of equipment, materials, or services, and other exemption certificates or information reasonably requested by either Party. At Hercules' request, Supplier shall provide Hercules with (i) written confirmation that Supplier has filed all required tax forms and returns required in connection with any Service Taxes collected from Hercules, and has collected and remitted all applicable Service Taxes, and (ii) such other information pertaining to applicable Taxes as Hercules may reasonably request.

(j)

Tax Audits or Proceedings. Each Party shall promptly notify the other Party of, and coordinate with the other Party, the response to and settlement of, any claim for taxes asserted by applicable taxing authorities for which the other Party is financially responsible hereunder. With respect to any claim arising out of a form or return signed by a Party to this Agreement, such Party shall have the right to elect to control the response to

and settlement of the claim, but the other Party shall have the right to participate in the responses and settlements to the extent appropriate given its potential responsibilities or liabilities. Each Party also shall have the right to challenge the imposition of any tax liability for which it is financially responsible under this Agreement or, if necessary, to direct the other Party to challenge the imposition of any such tax liability. If either Party requests the other to challenge the imposition of any tax liability, such other Party shall do so (unless and to the extent it assumes financial responsibility for the tax liability in question), and, the requesting Party shall reimburse the other for all fines, penalties, interest, additions to taxes or similar liabilities imposed in connection therewith, plus the reasonable legal, accounting and other professional fees and expenses it incurs. Each Party shall be entitled to any tax refunds or rebates obtained with respect to the taxes for which such Party is financially responsible under this Agreement.

(k)

Tax Filings. Each Party represents, warrants and covenants that it will file appropriate tax returns, and pay applicable taxes owed by such Party arising from or related to the provision of the Services in applicable jurisdictions. Supplier represents, warrants and covenants that it is registered to and will collect and remit Service Taxes in all jurisdictions in which it is legally required to do so.

11.5 Extraordinary Events.

(a)

Definition. As used in this Agreement, an “Extraordinary Event” shall mean a circumstance in which an event or discrete set of events has occurred or is planned with respect to the business of Hercules or the Eligible Recipients that results or will result in a change in the scope, nature or volume of the Services that Hercules and the Eligible Recipients will require from Supplier, and which is expected to cause the estimated average monthly usage of any chargeable Resource Unit to increase or decrease by twenty percent (20%) or more from the actual average monthly usage for the preceding twelve (12) months (or, if less, the number of months for which such data is available), provided that such increase or decrease is not temporary or seasonal and that such decrease is not due to Hercules resuming the provision of Services itself or transferring the provision of the Services to another services provider. Examples of the kinds of events that might cause such substantial increases or decreases include the following:

(i)

changes in locations where the Eligible Recipients operate;

(ii)

mergers, acquisitions, divestitures or reorganizations of the Eligible Recipients;

(iii)

changes in the applicable regulatory environment; or

(iv)

changes in the business units being serviced by Supplier.

(b)

Consequence. If an Extraordinary Event occurs, Hercules may, at its option, request more favorable pricing with respect to applicable Charges specified in Schedule J in accordance with the following:

(1)

Supplier and Hercules shall mutually determine on a reasonable basis the efficiencies, economies, savings and resource utilization reductions resulting from such Extraordinary Event and, upon Hercules' approval, Supplier shall then proceed to implement such efficiencies, economies, savings and resource utilization reductions as quickly as practicable and in accordance with the agreed upon schedule. As the efficiencies, economies, savings or resource utilization reductions are realized, the Charges specified on Schedule J and any affected Resource Baselines shall be promptly and equitably adjusted to pass through to Hercules the full benefit of such efficiencies, economies, savings and resource utilization reductions; provided, that Hercules shall reimburse Supplier for any net costs or expenses incurred to realize such efficiencies, economies, savings or resource utilization reductions if and to the extent Supplier (i) notifies Hercules of such additional costs and obtains Hercules' approval prior to incurring such costs, (ii) uses commercially reasonable efforts to identify and consider practical alternatives, and reasonably determines that there is no other more practical or cost effective way to obtain such savings without incurring such expenses, and (iii) uses commercially reasonable efforts to minimize the additional costs to be reimbursed by Hercules.

(2)

Subject to Section 4.4, an Extraordinary Event shall not result in Charges to Hercules being higher than such Charges would have been if the rates and charges specified in Schedule J had been applied. Hercules may, at its sole option, elect, for each Extraordinary Event, at any time to forego its rights under this Section 11.5 and instead, apply the rates and charges (e.g., ARCs and RRCs) specified in Schedule J to adjust the Charges.

11.6 Reserved.

11.7 Refundable Items.

(a)

Prepaid Amounts. Where Hercules and/or the Eligible Recipients have prepaid for a service or function for which Supplier is assuming financial responsibility under this Agreement, Supplier shall promptly refund to Hercules or such Eligible Recipient, upon either Party identifying the prepayment, that portion of such prepaid expense which is attributable to periods on and after the Commencement Date.

(b)

Refunds and Credits. If Supplier should receive a refund, credit, discount or other rebate for goods or services paid for by Hercules and/or the Eligible Recipients on a Pass-Through Expense, Retained Expense, cost-plus or cost-reimbursement basis, then Supplier shall (i) notify Hercules of such refund, credit, discount or rebate and (ii) promptly pay the full amount of such refund, credit, discount or rebate to Hercules or such Eligible Recipient.

11.8 Hercules Benchmarking Reviews.

(a)

Benchmarking Review. From time to time during the Term, Hercules may, at its expense and subject to this Section 11.8, engage the services of an independent third party (a “Benchmarker”) to compare the quality and cost of all or any portion of the Services against the quality and charges of other well managed service providers performing similar services to ensure that Hercules is receiving from Supplier pricing and levels of service that are competitive with market rates, prices and service levels, given the nature, volume and type of Services provided by Supplier hereunder (“Benchmarking”). In making this comparison, the Benchmarker shall consider the following factors and adjust the prices as and to the extent appropriate: (i) whether supplier transition charges are paid by the customer as incurred or amortized over the term of this Agreement; (ii) the extent to which supplier pricing includes the purchase of the customer’s existing assets; (iii) the extent to which supplier pricing includes the cost of acquiring future assets; (v) the extent to which this Agreement calls for supplier to provide and comply with unique Hercules requirements or requirements that are unique to Hercules’ industry; (v) the countries from which the services are provided by supplier, and (vi) whether Service Taxes are included in such pricing or stated separately in supplier invoices. Hercules shall not initiate more than one Benchmarking in any eighteen (18) month period, provided that such Benchmarking may include all or any number of the Services. Notwithstanding the preceding sentence, if a Benchmarking reveals an unfavorable pricing variance, Hercules may, at its option, initiate a second Benchmarking of some or all of the remaining Services during such eighteen (18) month period.

(b)

General. The Benchmarker engaged by Hercules shall be an impartial, nationally recognized firm with experience in benchmarking similar services (e.g., Gartner Group or Compass). Prior to selecting the Benchmarker, Hercules shall confer in good faith with Supplier as to the Benchmarker and methodology to be employed, but shall not be obligated to proceed in accordance with Supplier’s views and recommendations. The Benchmarker shall not be a Direct Supplier Competitor and shall execute a non-disclosure agreement substantially in the form attached hereto as Exhibit 1. Supplier shall cooperate fully with Hercules and the Benchmarker during the Benchmarking, and shall (i) provide the Benchmarker reasonable access to any premises, equipment, personnel or documents; and (ii) provide any assistance required by the Benchmarker to conduct the Benchmarking, all at Supplier’s cost and expense. Notwithstanding the preceding sentence, Supplier shall not be obligated to provide the Benchmarker with access to (A) the Confidential Information of other Supplier customers, (B) Supplier locations that are not related to Hercules, the Eligible Recipients or the Services, or (C) Supplier’s internal costs, except to the extent such costs are the basis upon which Hercules is charged (e.g., reimbursable expenses, Out-of-Pocket Costs, Pass-Through Expenses or cost-plus Charges) and/or are necessary to calculate the applicable variable

Charges. The Benchmarking shall be conducted so as not to unreasonably disrupt Supplier’s operations under this Agreement.

(c)

Supplier Review and Dispute. Hercules shall provide Supplier with a copy of the Benchmarker’s report and Supplier shall have ten (10) days to review such report and contest the Benchmarker’s findings. If the Parties are unable to agree upon the validity of such findings, the matter shall be resolved pursuant to the dispute resolution procedures set forth in Article 19.

(d)

Result of Benchmarking. If the Benchmarker finds that the Charges paid by Hercules for all Services or for any service element are greater than the median of the prices charged by other well managed service providers for work of a similar nature, type or volume, (the “Benchmark Standard”), the Parties shall meet and negotiate in good faith as to reductions in the Charges to eliminate any unfavorable variance. Reductions in Supplier’s Charges, if any, shall be implemented effective as of the date the Benchmarker’s report was first provided to Supplier. If the Parties are unable to agree upon such reductions, Hercules may, at its option, terminate the Services in whole or in part. If Hercules elects to terminate on this basis, Hercules shall pay a Termination Charge equal to fifty percent (50%) of the Termination Charge it would have been obligated to pay under Schedule N if it had terminated such Services for convenience under Section 20.2. If the Services are terminated in part, Supplier’s Charges shall be equitably adjusted to reflect the Services no longer performed by Supplier.

12 INVOICING AND PAYMENT

12.1 Invoicing.

(a)

Invoice. Within fifteen (15) days after the beginning of each month, Supplier shall present Hercules with an invoice for any Charges due and owing for the preceding month (the “Monthly Invoice”), including Monthly Base Charges, Transition Services Charges and ARCs and RRCs. At Hercules' request, Supplier shall provide separate Monthly Invoices for each Eligible Recipient then receiving Services, with the Charges allocated among such Eligible Recipients based on the chargeback data generated by Supplier and/or the allocation formula provided by Hercules. The Monthly Invoice shall be delivered to Hercules, at its request, at the address(es) listed in Section 21.3, and/or electronically. Supplier shall not invoice Hercules for any advance or concurrent charges or other amounts.

(b)

Form and Data. Each invoice shall be in the form specified in Exhibit 2 and shall (i) comply with all applicable legal, regulatory and accounting requirements, (ii) allow Hercules to validate volumes and fees, (iii) comply with the chargeback and other billing requirements defined in Exhibit 2, and (iv) meet Hercules' and the Eligible Recipient’s business, accounting and billing requirements. Each invoice shall include the pricing calculations and related data utilized to establish the Charges and sufficient information to validate the service volumes and associated Charges. The data underlying each invoice shall be delivered to Hercules electronically in a form and format compatible with Hercules' accounting systems.

(c)

Credits. To the extent a credit may be due to Hercules pursuant to this Agreement, Supplier shall provide Hercules with an appropriate credit against amounts then due and owing; if no further payments are due to Supplier, Supplier shall pay such amounts to Hercules within fifteen (15) days.

(d)

Time Limitation. If Supplier fails to provide an invoice to Hercules for any amount within one hundred and twenty (120) days after the month in which the Services in question are rendered or the expense incurred, Supplier shall waive any right it may otherwise have to invoice for and collect such amount.

12.2 Payment Due.

Subject to the other provisions of this Article 12, each Monthly Invoice provided for under Section 12.1 shall be due and payable within sixty (60) days after receipt by Hercules of such Monthly Invoice, unless the amount in question is disputed in accordance with Section 12.4. Any undisputed amount due under this Agreement for which a time for payment is not otherwise specified also shall be due and payable within sixty (60) days.

If either Party fails to make any undisputed payment on or before the payment due date, the Party to whom payment is owed may thereafter assess interest on the unpaid balance to and until the date of payment at the lesser of annual USD LIBOR plus one and one-half percent (1.5%) per annum or the maximum rate allowed by applicable Law. For avoidance of doubt, interest will not be assessed on amounts disputed pursuant to Section 12.4.

12.3 Reserved. .

12.4 Disputed Charges.

Hercules may withhold payment of particular Charges that Hercules reasonably disputes in good faith subject to the following:

(a)

Notice of Dispute. If Supplier’s invoice includes sufficient detail and supporting documentation to enable Hercules to reasonably determine whether Supplier’s Charges are in accordance with this Agreement, Hercules shall notify Supplier on or before the payment due date of such invoice if it disputes any of the Charges in such invoice.

(b)

Notice of Insufficient Detail, Documentation and Dispute. If Supplier’s invoice does not include sufficient detail and supporting documentation to enable Hercules to reasonably determine whether Supplier’s Charges are in accordance with this Agreement, Hercules shall so notify Supplier within thirty (30) days of its receipt of the invoice. Supplier shall promptly provide such reasonable detail and supporting documentation, and Hercules shall notify Supplier within ten (10) business days after receipt thereof by the Hercules Relationship Manager or his or her designee whether it disputes any of the Charges in Supplier’s invoice.

(c)

Description and Explanation, Expedited Dispute Resolution. If Hercules disputes any Supplier Charges, Hercules shall so notify Supplier and provide a description of the particular Charges in dispute and an explanation of the reason why Hercules disputes such Charges. The Parties shall use commercially reasonable efforts to resolve any such dispute expeditiously.

(d)

Monthly Ceiling. While Hercules may ultimately withhold the entire disputed amount, the amount withheld in any single month shall not exceed twenty percent (20%) of the total Charges for such month. If the disputed amount exceeds this monthly ceiling, Hercules may withhold the excess in subsequent months, subject to the same monthly ceiling, until the entire disputed amount is withheld.

(e)

Escrow. To the extent the disputed Charges exceed, in the aggregate, an amount equal to the average total monthly Charges for the preceding six (6) months (i.e., the total Charges for the preceding six (6) months, divided by six), the excess disputed Charges shall be paid or deposited by Hercules in an interest bearing escrow account for the benefit of both Parties, at a United States financial institution reasonably acceptable to Supplier, until such dispute has been resolved. Upon resolution of such dispute, such escrowed amounts and interest earned on such escrowed amounts shall be allocated to each Party to the extent a Party prevails.

(f)

Continued Performance. Each Party agrees to continue performing its obligations under this Agreement while any dispute is being resolved unless and until such obligations are terminated by the termination or expiration of this Agreement.

(g)

No Waiver. Neither the failure to dispute any Charges or amounts prior to payment nor the failure to withhold any amount shall constitute, operate or be construed as a waiver of any right Hercules may otherwise have to dispute any Charge or amount or recover any amount previously paid.

13	HERCULES DATA AND OTHER CONFIDENTIAL INFORMATION

13.1 Confidential Information.

Nothing in this Section 13.1 is intended to limit the obligations of Supplier under Sections 13.2 and 13.3 of this Agreement with respect to the Hercules Data addressed in such Sections and, to the extent the provisions of Sections 13.2 or 13.3 conflict with the provisions of this Section 13.1 as they pertain to Hercules Data, the provisions of Sections 13.2 or 13.3 shall control over the provisions of Section 13.1, as applicable.

(a)

Confidential Information. Supplier and Hercules each acknowledge that the other possesses and will continue to possess information that has been developed or received by it, has commercial value in its or its customers’ business and is not generally available to the public. Except as otherwise specifically agreed in writing by the Parties, “Confidential Information” means (i) this Agreement and the terms hereof and thereof, (ii) all information marked confidential, restricted or proprietary by either Party, and (iii) any other information that is treated as confidential by the disclosing Party and would reasonably be understood to be confidential, whether or not so marked. In the case of Hercules and the Eligible Recipients, Confidential Information also shall include Software provided to Supplier by Hercules or an Eligible Recipient, Hercules Owned Materials, Hercules Data, Hercules Personal Data, Authorized User information, attorney-client privileged materials, attorney work product, customer lists, customer contracts, customer information, rates and pricing, information with respect to competitors, strategic plans, account information, research information, information that contains trade secrets, financial/accounting information (including assets, expenditures, mergers, acquisitions, divestitures, billings collections, revenues, finances, forecasts and budgets), human resources and personnel information, marketing/sales information, information regarding businesses, plans, operations, mergers, acquisitions, divestitures, third party contracts, licenses, internal or external audits, law suits, regulatory compliance or other information or data of Hercules, an Eligible Recipient, an Authorized User or a Hercules Third Party Contractor obtained, received, transmitted, processed, stored, archived, or maintained by Supplier under this Agreement. In the case of Supplier, Confidential Information also shall include Software provided to Hercules by Supplier, Supplier Owned Materials, attorney-client privileged materials, attorney work product, information regarding other Supplier customers, financial information relating to Supplier's business or operation, information regarding Supplier’s business plans and other like information or data or Supplier or its Subcontractors or Affiliates received by Hercules pursuant to this Agreement.

(b) Disclosure of Confidential Information.

(i)

The Disclosing Party represents and warrants that it has the right to disclose its Confidential Information to the Receiving Party, subject to the confidentiality obligations contained in this Section 13.1.

(ii)

During the term of this Agreement and at all times thereafter as specified in Section 13.5, each Receiving Party (A) shall hold Confidential Information received from a Disclosing Party in confidence and shall use such Information only for the purposes of fulfilling its obligations or exercising its rights under this Agreement and for no other purposes, and (B) shall not disclose, provide, disseminate or otherwise make available any Confidential Information of the Disclosing Party to any third party without the express written permission of the Disclosing Party, unless expressly permitted by Sections 13.1(b)(iii) and 13.1(b)(iv) below or elsewhere in this Agreement. Each Receiving Party shall use at least the same degree of care to safeguard and to prevent disclosure and misuse of the Disclosing Party’s Confidential Information to third parties as the Receiving Party employs to avoid unauthorized disclosure, publication, dissemination, destruction, loss, or alteration of its own information (or information of its customers) of a similar nature, but not less than reasonable care.

(iii)

A Receiving Party may disclose Confidential Information of the Disclosing Party to its employees, directors, attorneys, financial advisors, contractors and agents provided that (A) such person or entity has a need to know the Confidential Information for purposes of performing his or her obligations under or with respect to this Agreement or as otherwise naturally occurs in such person’s

scope of responsibility, (B) such disclosure is made pursuant to an obligation of confidentiality upon such person or entity that is no less stringent than that set forth in this Section 13.1, and (C) such disclosure is not in violation of Law. The Receiving Party assumes full responsibility for the acts or omissions of any person or entity to whom it discloses Confidential Information of the Disclosing Party regarding their use of such Confidential Information and must take commercially reasonable measures to protect the Confidential Information from disclosure or use in contravention of this Agreement.

(iv)

A Receiving Party may disclose Confidential Information of a Disclosing Party as required to satisfy any legal requirement of a competent government body, provided that, promptly upon receiving any such request, the Receiving Party, to the extent it may legally do so, gives notice to the Disclosing Party of the Confidential Information to be disclosed and the identity of the third party requiring such disclosure prior to the making such disclosure in order that the Disclosing Party may interpose an objection to such disclosure, take action to assure confidential handling of the Confidential Information, or take such other action as it deems appropriate to protect the Confidential Information. The Receiving Party shall use commercially reasonable efforts to cooperate with the Disclosing Party in its efforts to seek a protective order or other appropriate remedy or, in the event such protective order or other remedy is not obtained, to obtain assurance that confidential treatment will be accorded such Confidential Information.

(v)

Unless expressly permitted by this Agreement, neither Party shall (A) make any use or copies of the Confidential Information of the other Party except as expressly contemplated by this Agreement, (B) possess or acquire any right in or assert any lien against the Confidential Information of the other Party, (C) sell, assign, transfer, lease, encumber, or otherwise dispose of or disclose the Confidential Information of the other Party to third parties or commercially exploit, or permit a third party to commercially exploit, such Information, or (D) refuse for any reason (including a default or material breach of this Agreement by the other Party) to promptly provide the other Party’s Confidential Information (including any copies thereof) to the other Party if requested to do so.

(vi)

Notwithstanding the foregoing, Hercules may disclose Confidential Information relating to the financial or operational terms of this Agreement in connection with a benchmarking under Section 11.8. In addition, Hercules may disclose Confidential Information relating to descriptions of the Services provided by Supplier, the applicable Service Levels and/or measurements of Supplier’s performance with respect to such Service Levels in connection with the solicitation of proposals for or the procurement of the same or similar services from prospective Hercules Third Party Contractors; provided, however, Hercules may not divulge the Master Professional Services Agreement (as opposed to the pertinent Schedules) or Supplier’s pricing for the Services provided hereunder in connection with any such solicitation or procurement.

(vii)

Each Party shall take all necessary steps to cause its employees comply with these confidentiality provisions.

(c)

Exclusions. Notwithstanding the above, Section 13.1(b) shall not apply to any particular information which the receiving Party can demonstrate (i) is, at the time of disclosure to it, generally available to the public other than through a breach of the Receiving Party’s or a third party’s confidentiality obligations; (ii) after disclosure to it, is published by the Disclosing Party or otherwise becomes generally available to the public other than through a breach of the Receiving Party’s or a third party’s confidentiality obligations; (iii) was lawfully in the possession of the Receiving Party immediately prior to the time of disclosure to it; (iv) is received from a third party having a lawful right to disclose such information; or (v) is independently developed by the Receiving Party without reference to the Disclosing Party’s Confidential Information.

(d)

Loss of Confidential Information. Each Party shall (i) immediately notify the other Party of any possession, use, knowledge, disclosure, or loss of such other Party’s Confidential Information in contravention of this Agreement, (ii) promptly furnish to the other Party all known details and assist such other Party in investigating and/or preventing the reoccurrence of such possession, use, knowledge, disclosure, or loss, (iii) cooperate with the other Party in any investigation or litigation deemed necessary by such other Party to protect its rights, and (iv) promptly use all commercially reasonable efforts to prevent

further possession, use, knowledge, disclosure, or loss of Confidential Information in contravention of this Agreement. Each Party shall bear any costs it incurs in complying with this Section 13.1(d).

(e)

No Implied Rights Nothing contained in this Section 13.1 shall be construed as obligating a Party to disclose its Confidential Information to the other Party, or as granting to or conferring on a Party, expressly or impliedly, any rights or license to any Confidential Information of the other Party.

(f)

Return or Destruction of Confidential Information. Each Party shall securely store the other Party’s Confidential Information until such Confidential Information is returned or destroyed as described in this Section. Except as provided below with respect to contract records, each Party shall destroy all documentation in any medium that contains, refers to, or relates to the other Party’s Confidential Information (or the portion of such Confidential Information specified by the other Party) or shall return such documentation to the other Party or its designee, in the format and on the media prescribed by the other Party, (i) within thirty (30) days of the expiration or termination of this Agreement and completion of each Party’s obligations hereunder, including, with respect to Supplier, all periods of Termination Assistance Services requested by Hercules, and (ii) with respect to Hercules Confidential Information, at any time Hercules requests such Information or, with respect to particular Confidential Information, within thirty (30) days of the date that such Confidential Information is no longer required by Supplier to perform its obligations under this Agreement. Such documentation shall include all copies of a Party’s Confidential Information in the other Party’s possession or under the other Party’s control. The Party returning or destroying the other Party’s Confidential Information shall deliver to the other Party written certification of its compliance with this paragraph signed by an authorized representative of such Party.

Notwithstanding the foregoing, either Party may retain one copy of the other Party’s Confidential Information in its legal department as and to the extent required to comply with applicable Laws or enforce its rights under this Agreement; provided that such Confidential Information shall be returned or destroyed in accordance with this provision upon the expiration of the period specified in the applicable Law, the expiration of the applicable statute of limitations and the final resolution of any pending dispute.

Subject to the preceding paragraph, Contract Records shall be retained by Supplier for the audit period specified in Section 9.12(a) unless and to the extent Supplier is directed by Hercules to deliver such Contract Records to Hercules prior to the expiration of such Audit Period.

In no event shall a party withhold any Confidential Information of the other party as a means of resolving any dispute.

13.2 Hercules Data.

Nothing in this Section 13.2 is intended to limit the obligations of Supplier under Sections 13.1 and 13.3 of this Agreement with respect to the Confidential Information addressed in such Sections. To the extent that the provisions of Section 13.1 pertaining to Hercules Data conflict with the provisions of this Section 13.2, the provisions of Section 13.2 shall control over the provisions of Section 13.1. To the extent that the provisions of Section 13.3 pertaining to Personal Data conflict with the provisions of this Section 13.2, the provisions of Section 13.3 shall control over the provisions of Section 13.2.

(a)

Ownership of Hercules Data. Hercules Data shall be and remain, as between the Parties, the property of Hercules and/or the relevant Eligible Recipient regardless of whether Supplier or Hercules is in possession of the Hercules Data. Supplier shall not possess or assert any lien or other right against or to Hercules Data. Supplier shall not sell, assign, lease, or encumber Hercules Data. Supplier shall not disclose to or allow access by third parties to Hercules Data, unless expressly provided for in this Agreement. Supplier shall not commercially exploit, or permit a third party to commercially exploit, Hercules Data on behalf of Supplier or any other person or entity.

Hercules Data shall be made available to Hercules, upon its request, in the form and format as reasonably requested by Hercules.

(b)

Safeguarding of Hercules Data.

(i)

Supplier and Subcontractors to whom Hercules Data is provided shall maintain a comprehensive data security program, which shall include reasonable and appropriate technical, organizational and security measures against the destruction, loss, unauthorized access or alteration of Hercules Data in the possession of Supplier or such Subcontractors, and which shall be (i) no less rigorous than those maintained by Hercules as of the Commencement Date (or implemented by Hercules in the future to the extent deemed necessary by Hercules), (ii) no less rigorous than those maintained by Supplier for its own information of a similar nature, (iii) no less rigorous than accepted security standards in the industry, and (iv) adequate to meet the requirements of Hercules’ privacy, security and records retention policies.

The data security program and associated technical, organizational and security measures shall comply in all material respects with the following:

(A)

Subject to Section 15.7, all applicable Laws;

(B)

Hercules policies specified in Schedule T.2;

(C)

Hercules Standards, including information technology, security, privacy and record retention policies, standards, protocols, requirements and specifications, including Hercules' requirements for Supplier’s utilization of secure infrastructure and data encryption methods;

(D)

ISO 17799, as it may be modified or replaced from time to time.

The content and implementation of the data security program and associated technical, organizational and security measures shall be fully documented in writing by Supplier. Supplier shall permit Hercules to review such documentation and/or to inspect Supplier’s compliance with such program in accordance with Section 9.12.

(ii)

Under no circumstances shall Supplier make any changes that materially weaken any technical, organizational or security measures in place to safeguard Hercules Data, or result in Supplier’s failure to meet any of the minimum standards set forth above without Hercules' prior approval. Under no circumstances shall Supplier or Supplier Personnel attempt to access or allow access to Hercules Data that is not required for the performance of Supplier’s obligations or otherwise permitted under this Agreement.

(iii)

Subject to any restriction in contracts with Supplier’s other customers, Supplier shall regularly advise Hercules of data security practices, procedures and safeguards in effect for other Supplier customers that, in Supplier’s reasonable judgment, are (1) relevant to the Services being provided under the Agreement and (2) exceed relevant industry standards pertaining to human resources, payroll, procurement, accounts payable and other in-scope services. If requested by Hercules, Supplier shall, to the extent reasonably practicable and subject to the Change Control Procedures, implement such enhanced practices, procedures, and safeguards with respect to its provision of Services to Hercules hereunder.

(iv)

Hercules shall have the right to establish backup security for any Hercules Data and to keep backup and files for such Data in its possession if it chooses. Supplier shall provide Hercules with downloads of Hercules Data, as requested by Hercules, to enable Hercules to maintain such backup copies.

(v)

In the event Supplier discovers or is notified of a breach or potential breach of security relating to Hercules Data in the possession or control of Supplier or its Subcontractors or Affiliates, Supplier shall, in addition to its obligations pursuant to Sections 6.2(c), expeditiously (i) notify Hercules of

such breach or potential breach, (ii) investigate (with Hercules' participation if so desired by Hercules) such breach or potential breach and perform a risk assessment, Root Cause Analysis and corrective action plan thereon, (iii) provide a written report to Hercules of such risk assessment, Root Cause Analysis and action plan, (iv) remediate such breach or potential breach of security to the extent within Supplier’s or its Subcontractor’s or Affiliate’s areas of control, (v) take commercially reasonable actions to prevent the recurrence of such breach or potential breach of security, and (vi) to the extent such breach or potential breach is within Supplier’s or its Subcontractor’s or Affiliate’s areas of control, provide Hercules with reasonable assurances that such breach or potential breach will not recur.

(vi)

To the extent Supplier removes Hercules Data from any media that is taken out of service that is under Supplier’s control, Supplier shall destroy or securely erase such media in accordance with the Policy and Procedures Manual. Under no circumstances shall Supplier use or re-use media on which Hercules Data has been stored to store data of any other customer of Supplier or to deliver data to a third party, including another Supplier customer, unless such Hercules Data has been securely erased in accordance with the Policy and Procedures Manual.

(vii)

To the extent Supplier has access to cardholder payment card information including acct #, expiration date and 3 digit code on systems that the Supplier controls, Supplier shall comply with the Payment Card Industry ("PCI") security standard dated June 30, 2005 and any later promulgated changes to such standard.

13.3 Personal Data.

In addition to the provisions of Sections 13.1 and 13.2, the following privacy and data protection provisions shall apply to Personal Data. To the extent any of the provisions of this Article 13 purporting to apply to Personal Data conflict with provisions of this Section 13.3, the provisions of Section 13.3 shall control over such other provisions.

(a)

Supplier shall hold any Personal Data that it receives in confidence and in compliance with (1) Supplier’s obligations under this Agreement, the Schedules and Attachments hereto and the Policy and Procedures Manual, and (2) subject to Section 15.7, all Laws regarding its use of and access to such Personal Data.

(i)

Supplier shall process and store all Personal Data in (1) the United States, (2) the jurisdiction in which the data subject resides (or, in the case of a data subject residing in the European Economic Area (“EEA”), in the EEA) or (3) the jurisdictions set forth in the Policy and Procedures Manual and shall not transfer, process, or maintain Hercules Data in any other jurisdiction without the prior consent of Hercules.

(ii)

Supplier shall not transfer Personal Data from a country within the European Economic Area to countries deemed by the European Union not to have adequate protection without first ensuring that the standard contractual clauses approved by the European Commission in Commission Decision as the standard contractual clauses for the transfer of personal data to processors in third countries under Directive 95/46/EC, 2002 O.J. L6/52 are in place between the Hercules Affiliate that is the Data Exporter and the Data Importer.

(iii)

Supplier shall maintain technical, organizational and security measures to protect the confidentiality of Personal Data processed in the EU consistent with the security measures contained in this section.

(iv)

The Parties acknowledge that, for purposes of the European Data Protection Legislation, Supplier will act as a Data Processor in relation to all Personal Data it accesses under this Agreement, that Hercules is the Data Controller with respect to such Personal Data, and that Supplier will act in accordance with Hercules' instructions in relation to such Personal Data.

(b)

Supplier agrees that Supplier and Supplier Personnel will not use any Personal Data for any purpose other than the fulfillment of the terms and conditions of this Agreement. Supplier as well as its employees, agents and Subcontractors shall not process or disseminate Personal Data to any third party or transfer Personal Data

without the approval of Hercules unless expressly provided for in this Agreement. Supplier shall take appropriate action to cause:

(i)

Any Supplier Personnel who have access to Personal Data pursuant to this Agreement to be advised of, and comply with, the terms and conditions of this Section 13.3; and

(ii) Any Supplier Personnel who have access to Personal Data to be trained regarding their handling of such Personal Data.

Supplier shall be responsible for any failure of Supplier Personnel to comply with the terms and conditions regarding Personal Data set forth in this Section 13.3.

(c)

When interfacing with Hercules or the applicable Eligible Recipient regarding Personal Data, Supplier shall only disclose or transmit Personal Data to those Hercules or Eligible Recipient employees and Hercules Third Party Contractors authorized by the Hercules Relationship Manager or his or her designee or identified in the Policy and Procedures Manual.

(d)

Hercules shall notify Supplier of any:

(i)Limitation in any privacy notice used by Hercules to the extent that such limitation may affect Supplier’s use or disclosure of Personal Data; and

(ii)

Restriction on the use or disclosure of Personal Data to which Hercules agreed to the extent that such restriction may affect Supplier’s use or disclosure of such Personal Data.

Supplier agrees to promptly implement any such limitation or restriction as directed by Hercules.

(e)

If Supplier has knowledge of any unauthorized disclosure of or access to Personal Data, Supplier shall:

(i) Expeditiously report such unauthorized disclosure or access to Hercules,

(ii)

Mitigate, to the extent practicable, any harmful effect of such disclosure or access that is known to Supplier or its agents, and

(iii)

Cooperate with Hercules in providing any notices regarding impermissible disclosures caused by such disclosure or access which Hercules deems appropriate.

To the extent such unauthorized disclosure or access is attributable to a breach by Supplier or Supplier Personnel of Supplier’s obligations under this Agreement with respect to Personal Data, Supplier shall bear (A) the costs incurred by Supplier in complying with its legal obligations relating to such breach, and (B) in addition to any other damages for which Supplier may be liable for under this Agreement, the following costs incurred by Hercules or the Eligible Recipient in responding to such breach, to the extent applicable, (1) the cost of providing notice to affected individuals, (2) the cost of providing notice to government agencies, credit bureaus, and/or other required entities, (3) the cost of providing affected individuals with credit monitoring services for a specific period not to exceed twelve (12) months, to the extent the disclosure of the affected individual’s Personal Data could lead to a compromise of the data subject’s credit or credit standing, (4) call center support for such affected individuals for a specific period not to exceed thirty (30) days, (5) the cost of any other measures required under applicable Law, and (6) any other Losses for which Supplier would be liable under this Agreement.

13.4 File Access.

Hercules shall have secure access to, and the right to review and retain the entirety of, all Hercules Confidential Information in the possession or control of Supplier or its Affiliates and Subcontractors. Such access shall be provided to Hercules in real time and by the means and in the format reasonably requested by Hercules. At no time

shall Hercules' Confidential Information be stored or held by Supplier in a form or manner not readily accessible to Hercules in this manner.

13.5 Hercules Data -- Correction and Restoration

(a)

Corrections. The correction of any errors or inaccuracies in or with respect to Hercules Data shall be performed by the Party that has operational responsibility for inputting such Hercules Data into the applicable System. To the extent (i) Supplier is operationally responsible for inputting such data, or (ii) such errors or inaccuracies are attributable to the failure of Supplier or Supplier Personnel to comply with Supplier’s obligations under this Agreement, Supplier shall bear the cost of correcting such errors or inaccuracies.

(b)

Re-running of Corrected Data. If the correction of errors or inaccuracies as described above necessitates the re-running of corrected Hercules Data and thereby results in the usage of additional Resource Units, Hercules shall pay the applicable Resource Unit charge as set forth in Schedule J, unless the underlying errors or inaccuracies are attributable to the failure of Supplier or Supplier Personnel to comply with Supplier’s obligations under this Agreement (including the failure of Supplier or Supplier Personnel to adhere to applicable processes and controls that, if adhered to, would have enabled Supplier or Supplier Personnel to identify and timely correct such errors or inaccuracies, even if caused by Hercules), in which case Supplier shall be financially responsible for any additional Resource Units usage resulting from the re-running of corrected data.

(c)

Restoration of Data. The restoration of any destroyed, lost or altered Hercules Data shall be performed by the Party that has operational responsibility for maintaining the System on which such Hercules Data resides and for creating and maintaining backup copies of such Hercules Data. To the extent (i) Supplier is operationally responsible for performing such restoration or (ii) such destruction, loss or alteration is attributable to the failure of Supplier or Supplier Personnel to comply with Supplier’s obligations under this Agreement, Supplier shall bear the cost of restoring such data.

13.6 Survival

Supplier’s obligations under this Article with respect to Personal Data shall survive the expiration or termination of this Agreement and shall be perpetual. The Parties’ obligations under this Article with respect to all other Confidential Information shall survive the expiration or termination of this Agreement for a period of eight (8) years from the later of (i) the expiration or termination of this Agreement (including all periods of Termination Assistance Services), or (ii) the return or destruction of Confidential Information in accordance with Sections 13.1 (but not including accounting information pertaining to this Agreement that Supplier is required to maintain pursuant to applicable Laws); provided, however, that the passage of this eight (8) year period shall not absolve either Party of responsibility for any breach of this Article 13 occurring prior to the expiration of such eight (8) year period.

14 OWNERSHIP OF MATERIALS

14.1 Hercules Owned Materials.

(a)

Ownership of Hercules Owned Materials. For purposes of this Agreement, Hercules shall be the sole and exclusive owner of (i) all intellectual property, Software and other Materials owned by Hercules or the Eligible Recipients as of the Effective Date, including Hercules Owned Software and other Materials owned by Hercules and the Eligible Recipients, (ii) all enhancements and Derivative Works of such intellectual property, Software and Materials, including all United States and foreign patent, copyright and other intellectual property rights in such Materials, and (iii) certain Developed Materials, as provided in Section 14.2 (collectively, “Hercules Owned Materials”).

(b)

License to Hercules Owned Materials. As of the Commencement Date, Hercules hereby grants Supplier and, to the extent necessary for Supplier to provide the Services, to Subcontractors designated by Supplier that sign a written agreement to be bound by all of the terms contained herein applicable to such Materials

(such agreement shall be agreed to by the Parties and shall include the terms specified in this Section as well as those pertaining to the ownership of such Materials and any Derivative Works developed by the Parties, the scope and term of the license, the restrictions on the use of such Materials, the obligations of confidentiality, etc.) a non-exclusive, non-transferable, royalty-free limited right and license during the Term (and thereafter to the extent necessary to perform any Termination Assistance Services requested by Hercules) to access, use, execute, reproduce, display, perform, modify and distribute the Hercules Owned Materials for the express and sole purpose of providing the Services. Supplier and its Subcontractors shall have no right to the source code to such Hercules Owned Materials unless and to the extent approved in advance by Hercules. Hercules Owned Materials shall remain the property of Hercules. Supplier and its Subcontractors shall not (i) use any Hercules Owned Materials for the benefit of any person or Entity other than Hercules or the Eligible Recipients, (ii) separate or uncouple any portions of the Hercules Owned Materials, in whole or in part, from any other portions thereof, or (iii) reverse assemble, reverse engineer, translate, disassemble, decompile or otherwise attempt to create or discover any source or human readable code, underlying algorithms, ideas, file formats or programming interfaces of the Hercules Owned Materials by any means whatsoever, without the prior approval of Hercules, which may be withheld at Hercules' sole discretion. Except as otherwise requested or approved by Hercules, Supplier and its Subcontractors shall cease all use of Hercules Owned Materials upon the end of the Term and the completion of any Termination Assistance Services requested by Hercules pursuant to Section 4.3(b)(8) and shall certify such cessation to Hercules in a notice signed by an officer of Supplier and each applicable Subcontractor. THE HERCULES OWNED MATERIALS ARE PROVIDED BY HERCULES TO SUPPLIER AND ITS SUBCONTRACTORS ON AN AS-IS, WHERE-IS BASIS. HERCULES EXPRESSLY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, AS TO SUCH HERCULES OWNED MATERIALS, OR THE CONDITION OR SUITABILITY OF SUCH MATERIALS FOR USE BY SUPPLIER OR ITS SUBCONTRACTORS TO PROVIDE THE SERVICES, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

(c)

License to Hercules Third Party Materials. Subject to Supplier having obtained any Required Consents, Hercules hereby grants to Supplier, for the sole purpose of performing the Services and solely to the extent of Hercules' underlying rights, the same rights of access and use as Hercules possesses under the applicable software licenses with respect to Hercules licensed Third Party Materials. Hercules also shall grant such rights to Subcontractors designated by Supplier if and to the extent necessary for Supplier to provide the Services; provided that, Supplier shall pay all fees, costs and expenses associated with the granting of such rights to such Subcontractors. Supplier and its Subcontractors shall comply with the duties, including use restrictions and nondisclosure obligations, imposed on Hercules by such licenses. In addition, each Subcontractor shall sign a written agreement to be bound by terms consistent with the terms contained herein applicable to such Third Party Materials and shall include the terms specified in this Section as well as those pertaining to the ownership of such Materials and any Developed Materials, the scope and term of the license, the restrictions on the use of such Materials, and the obligations of confidentiality. Except as otherwise requested or approved by Hercules (or the relevant licensor), Supplier and its Subcontractors shall cease all use of such Third Party Materials upon the end of the Term and the completion of any Termination Assistance Services requested by Hercules pursuant to Section 4.3(b)(8). THE HERCULES LICENSED THIRD PARTY MATERIALS ARE PROVIDED BY HERCULES TO SUPPLIER AND ITS SUBCONTRACTORS ON AN AS-IS, WHERE-IS BASIS. HERCULES EXPRESSLY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES, EXPRESSED OR IMPLIED, AS TO SUCH HERCULES LICENSED THIRD PARTY MATERIALS, OR THE CONDITION OR SUITABILITY OF SUCH MATERIALS FOR USE BY SUPPLIER OR ITS SUBCONTRACTORS TO PROVIDE THE SERVICES, INCLUDING WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE (PROVIDED THAT, HERCULES SHALL PASS THROUGH, OR OTHERWISE PROVIDE, TO SUPPLIER THE REPRESENTATIONS AND WARRANTIES MADE BY THE MANUFACTURERS AND/OR PROVIDERS OF SUCH HERCULES LICENSED THIRD PARTY MATERIALS TO THE EXTENT IT IS PERMITTED TO DO SO UNDER THE APPLICABLE THIRD PARTY CONTRACTS).

14.2 Developed Materials.

(a)

Ownership by Hercules. Unless otherwise agreed by the Parties and except as provided in Section 14.2(c), all Developed Materials shall be owned solely by Hercules and considered to be works made for hire (as that

term is used in Section 101 of the United States Copyright Act, 17 U.S.C. § 101, or in analogous provisions of other applicable Laws) and owned by Hercules. If any such Developed Materials may not be considered a work made for hire under applicable Law, Supplier hereby irrevocably assigns, and shall assign, to Hercules in perpetuity without further consideration, all of Supplier’s worldwide rights, title and interest in and to such Developed Materials, including United States and foreign intellectual property rights. Supplier acknowledges that Hercules and the successors and assigns of Hercules shall have the right to obtain and hold in their own name any intellectual property rights in and to such Developed Materials. Supplier agrees to execute any documents and take any other actions reasonably requested by Hercules to effectuate the purposes of this Section 14.2(a). Hercules herby grants to Supplier a license to such Developed Materials on the same terms as described in Section 14.1(b). Hercules may, in its sole discretion and upon such terms and at such financial arrangement as Hercules and Supplier may agree, grant Supplier a license to use the Developed Materials for other purposes and to sublicense such Developed Materials.

(b)

Source Code and Documentation. Supplier shall, promptly as it is developed by Supplier, provide Hercules with the source code and object code and documentation for all Hercules owned Developed Materials and any other Hercules-specific Materials used by Supplier. Such source code and documentation shall be sufficient to allow a reasonably knowledgeable and experienced programmer to maintain and support such Materials and the user documentation for such Materials shall accurately describe in terms understandable by a typical end user the functions and features of such Materials and the procedures for exercising such functions and features.

(c)

Supplier Owned Developed Materials. Notwithstanding Section 14.2(a), Developed Materials that are Derivative Works of Supplier Owned Materials shall be owned by Supplier, including Derivative Works of Supplier Owned Materials made by Hercules, Hercules Affiliates, Eligible Recipients, or their designees. Supplier hereby grants to Hercules a worldwide, perpetual, irrevocable, non-exclusive, fully paid-up license, with the right to grant sublicenses, to use, execute, reproduce, display, perform, modify, enhance, distribute and create Derivative Works of such Supplier owned Developed Materials during the Term and any Termination Assistance Services period for the benefit and use of Hercules, Hercules Affiliates and the Eligible Recipients. The rights and obligations of Hercules and the Eligible Recipients with respect to such Supplier Owned Materials following the expiration or termination of the Agreement or termination of any Service are set forth in Section 14.6.

(d)

Third Party Materials. The ownership of Derivative Works of Third Party Materials created in connection with the Services shall, as between Supplier and Hercules, be considered Developed Materials owned by the Party that is the licensee of such Third Party Materials. For purposes of the foregoing, Supplier shall be deemed the licensee of Third Party Materials licensed by its Subcontractors or Affiliates and Hercules shall be deemed the licensee of Third Party Materials licensed by Hercules Affiliates or any Eligible Recipient. Each Party acknowledges and agrees that its ownership of such Derivative Works may be subject to or limited by the terms of the underlying agreement with the owner of the underlying Third Party Materials; provided, that if a Derivative Work is to be made of Third Party Materials provided by Supplier, Supplier shall notify Hercules in advance and obtain Hercules' consent prior to proceeding with such Derivative Work if the terms of any such agreement will preclude or limit, as applicable, Hercules' license rights in and to such Derivative Work as contemplated in Sections 14.3 and 14.6.

(e)

Disclosure by Supplier of Developed Materials. Supplier shall promptly disclose in writing to Hercules each Developed Material that is developed in connection with the Services. With respect to each disclosure, Supplier shall indicate the features or concepts that it believes to be new or different.

(f)

Waiver of Moral Rights. To the extent permitted by law, Supplier hereby waives any moral rights in the Hercules owned Developed Materials, such as the right to be named as author, the right to modify, the right to prevent mutilation and the right to prevent commercial exploitation, whether arising under the Berne Convention or otherwise.

14.3 Supplier Owned Materials.

(a)

Ownership of Supplier Owned Materials. Supplier shall be the sole and exclusive owner of the (i) intellectual property, Software and Materials lawfully owned by it prior to the Commencement Date, (ii) intellectual property, Software and Materials acquired by Supplier on or after the Commencement Date, other than acquisitions for Hercules or an Eligible Recipient in connection with the performance of the Services, (iii) Developed Materials that are Derivative Works of Supplier owned intellectual property, Software and Materials created by or for Supplier as provided in Section 14.2(c), (iv) intellectual property, Software and Materials developed by or on behalf of Supplier other than in the course of the performance of its obligations under this Agreement or in connection with the use of any Hercules Data or Hercules Owned Materials, including all United States and intellectual property rights in such Materials (“Supplier Owned Materials”).

(b)

License to Supplier Owned Materials. As of the Commencement Date, Supplier hereby grants to Hercules and the Eligible Recipients (and at Hercules’ request and subject to Section 13.1, Hercules Third Party Contractors that sign a written agreement with Hercules to be bound by terms at least as protective as the terms contained herein applicable to such Materials), at no additional charge, a world-wide non-exclusive, royalty-free right and license, with the right to grant sublicenses, to access, use, execute, reproduce, display, perform, modify, enhance, distribute and create Derivative Works of the Supplier Owned Materials (including all modifications, replacements, Upgrades, enhancements, methodologies, tools, documentation, materials and media related thereto) during the Term and any Termination Assistance Services period, for the benefit of Hercules, the Eligible Recipients and their respective Affiliates, to (i) receive the full benefit of the Services provided by Supplier, (ii) monitor, access, interface with or use the Materials and Software then being used by Supplier, (iii) perform or have performed ancillary services and functions, including related information technology services and functions, in each case related to the Services provided by Supplier, and (iv) perform or have performed services that are the same as or similar to the Services to the extent such Supplier Owned Material is necessary to maintain, support, enhance or further develop Hercules Owned Materials, Hercules licensed Third Party Materials or other Materials as to which Hercules holds a license under this Agreement. Supplier Owned Materials shall remain the property of Supplier. The rights and obligations of Hercules and the Eligible Recipients with respect to such Supplier Owned Materials following the expiration or termination of the Agreement or termination of any Service are set forth in Section 14.6.

(c)

Embedded Materials. To the extent that Supplier Owned Materials are embedded in any Developed Materials owned by Hercules pursuant to Section 14.2(a) and (b). Supplier shall not be deemed to have assigned its intellectual property rights in such Supplier Owned Materials to Hercules, but Supplier hereby grants to Hercules and the Eligible Recipients a worldwide, perpetual, irrevocable, non-exclusive, fully paid-up license, with the right to grant sublicenses, to use, execute, reproduce, display, perform, modify, enhance, distribute and create Derivative Works of such Supplier Owned Materials (including all modifications, replacements, Upgrades, enhancements, methodologies, tools, documentation, materials and media related thereto) for the benefit of Hercules, the Eligible Recipients and their respective Affiliates for so long as such Supplier Owned Materials remain embedded in such Developed Materials and are not separately commercially exploited. Following the expiration or termination of the Term and the termination of the Service(s) for which such Materials were used, Supplier shall, at Hercules' request, provide Upgrades, maintenance, support and other services for such embedded Supplier Owned Materials in accordance with Sections 14.6(b).

(d)

License to Supplier Third Party Materials. As of the Commencement Date and subject to Supplier having obtained any Required Consents, Supplier hereby grants to Hercules and the Eligible Recipients, at no additional charge, a non-exclusive, royalty-free right and license, with the right to grant sublicenses, to access and/or use the Third Party Materials as to which Supplier holds the license or for which Supplier is financially responsible under this Agreement (including all modifications, substitutions, Upgrades, enhancements, methodologies, tools, documentation, materials and media related thereto), during the Term and any Termination Assistance Services period, for the benefit and use of Hercules, the Eligible Recipients and their respective Affiliates, (i) receive the full benefit of the Services provided by Supplier, (ii) perform or have performed ADM/BPO services, (iii) monitor, access, interface with or use the Materials and Software then being used by Supplier and (iv) perform or have performed ancillary services and functions, including related information technology services and functions. Notwithstanding the foregoing, Supplier shall not be

obligated to grant such license and other rights if and to the extent Hercules agrees to forego some or all such rights prior to Supplier’s first use of such Third Party Material in the performance of the Services and such agreement is memorialized in Schedule B. The rights and obligations of Hercules, the Eligible Recipients and Hercules Third Party Contractors with respect to such Supplier licensed Third Party Materials following the expiration or termination of the Agreement or termination of any Service are set forth in Section 14.6.

14.4 Other Materials.

This Agreement shall not confer upon either Party intellectual property rights in Materials of the other Party (to the extent not covered by this Article 14) unless otherwise so provided elsewhere in this Agreement.

14.5 General Rights.

(a)

Copyright Legends. Each Party agrees to reproduce copyright legends which appear on any portion of the Materials which may be owned by the other Party or third parties.

(b)

Residuals. Nothing in this Agreement shall restrict any employee or representative of a Party from using ideas, concepts, practices, learning or know-how relating generally to the performance of BPO/ADM services that are retained in the unaided memory of such employee or representative after performing the obligations of such Party under this Agreement, except to the extent that such use infringes upon any patent, copyright or other intellectual property right of a Party or its Affiliates (or, in the case of Supplier, any Eligible Recipient); provided, however, that this Section 14.5(b) shall not (i) be deemed to limit either Party’s obligations under this Agreement with respect to the disclosure or use of Confidential Information, or (ii) operate or be construed as permitting an employee or representative of Supplier to disclose, publish, disseminate or use (a) the source of any Confidential Information of Hercules or an Eligible Recipient, (b) any financial, statistical or personnel information of Hercules or an Eligible Recipient, or (c) the business plans of Hercules or the Eligible Recipients. An individual’s memory is unaided if the individual has not intentionally memorized the Confidential Information for the purpose of retaining and subsequently using or disclosing it and does not identify the information as Confidential Information upon recollection. For avoidance of doubt, the foregoing would not permit Supplier Personnel to use Confidential Information of Hercules or an Eligible Recipient (other than ideas, concepts, practices, learning and know-how relating generally to the performance of BPO/ADM services) for any purpose other than the provision of Services under this Agreement.

(c)

No Implied Licenses. Except as expressly specified in this Agreement, nothing in this Agreement shall be deemed to grant to one Party, by implication, estoppel or otherwise, license rights, ownership rights or any other intellectual property rights in any Materials owned by the other Party or any Affiliate of the other Party (or, in the case of Supplier, any Eligible Recipient).

(d)

Incorporated Materials. Should either Party incorporate into Developed Materials any intellectual property subject to third party patent, copyright or license rights, any ownership or license rights granted herein with respect to such Materials shall be limited by and subject to any such patents, copyrights or license rights; provided that, prior to incorporating any such intellectual property in any Materials, the Party incorporating such intellectual property in the Materials has disclosed this fact and obtained the prior approval of the other Party.

14.6 Hercules Rights Upon Expiration or Termination of Agreement.

As part of the Termination Assistance Services, Supplier shall provide the following to Hercules, Hercules Affiliates and the Eligible Recipients with respect to Materials and Software:

(a)

Hercules Owned Materials and Developed Materials. With respect to Hercules Owned Materials (including Hercules owned Developed Materials), Supplier shall, at no cost to Hercules:

(i)

Deliver to Hercules all Hercules Owned Materials and all copies thereof in the format and medium in use by Supplier in connection with the Services as of the date of such expiration or termination; and

(ii)

Following confirmation by Hercules that the copies of the Hercules Owned Materials delivered by Supplier are acceptable and the completion by Supplier of any Termination Assistance Services for which such Materials are required, destroy or securely erase all other copies of such Materials then in Supplier’s possession and cease using such Materials and any information contained therein for any purpose.

(b)

Commercially Available Supplier Owned Materials. Subject to the final paragraph of this Section 14.6(b), with respect to Materials owned by Supplier, Supplier Affiliates or, (subject to Section 6.4(c)), Subcontractors that are generally commercially available and used by them to provide the Services (and any modifications, enhancements, Upgrades, methodologies, tools, documentation, materials and media related thereto):

(i)

Supplier hereby grants to Hercules and the Eligible Recipients (and at Hercules’ request and subject to Section 13.1, Hercules Third Party Contractors that sign a written agreement with Hercules to be bound by terms at least as protective as the terms contained herein applicable to such Materials) a license on standard terms and conditions no less favorable than those offered generally by Supplier to other commercial customers to use such Materials following the expiration or termination of the Term or termination of the Service(s) for which such Materials were used; provided that, in all events, such terms and conditions must be at least broad enough to permit Hercules and the Eligible Recipients (or, at Hercules’ direction, their designee) to use such Materials to provide for Hercules and the Eligible Recipients, or have provided for them by third party contractors, services similar to the Services, and for Hercules and the Eligible Recipients to receive such services;

(ii)

Supplier shall deliver to Hercules and the Eligible Recipients (or, at Hercules’ election, to their designee(s)) (A) a copy of such Supplier Owned Materials and related documentation, and (B) the source code and object code for such Supplier Owned Materials to the extent such Supplier Owned Materials include source code or object code and such code is customarily provided to commercial customers licensing such Materials and

(iii)

Supplier shall offer to provide to Hercules and the Eligible Recipients (and at Hercules’ request and subject to Section 13.1, Hercules Third Party Contractors that sign a written agreement with Hercules to be bound by terms at least as protective as the terms contained herein applicable to such Materials) Upgrades, maintenance, support and other services for such Materials on Supplier’s then-current standard terms and conditions for such services.

Unless Hercules otherwise agrees prior to Supplier’s first use of such Supplier Owned Material in the performance of the Services, Hercules and the Eligible Recipients (and, to the extent applicable, Hercules’ designee(s)) shall not be obligated to pay any license or transfer fees in connection with its receipt of the licenses and other rights above. Hercules shall be responsible for any periodic or other license fees attributable to periods after Hercules' first use of such Supplier Owned Material pursuant to this provision, provided such fees are no less favorable than those offered generally by Supplier to other commercial customers using such Materials.

Supplier shall not use any generally commercially available Supplier Owned Materials for which it is unwilling or unable to grant some or all of the license or other rights described above unless and to the extent Hercules agrees to forego such rights prior to Supplier’s first use of such Third Party Material in the performance of the Services and such agreement is memorialized in Schedule E.1. In seeking Hercules’ approval, Supplier may propose alternative terms, such as a fee for such license, a limitation on the use of such Materials by a Hercules Third Party Contractor, and/or the substitution of a functionally equivalent product.

(c)

Non-Commercially Available Supplier Owned Materials. Subject to the final paragraph of this Section 14.6(b), with respect to Materials owned by Supplier or Supplier Affiliates or Subcontractors and used by them to provide the Services that are not generally commercially available (and any modifications, enhancements, Upgrades, methodologies, tools, documentation, materials and media related thereto):

(i)

Supplier hereby grants to Hercules and the Eligible Recipients (and at Hercules’ request and subject to Section 13.1, Hercules Third Party Contractors that sign a written agreement with Hercules to be bound by terms at least as protective as the terms contained herein applicable to such Materials) a worldwide, perpetual, irrevocable, non-exclusive, non-transferable, fully paid-up license, to use, execute, reproduce, display, perform, and distribute such non-commercially available Supplier Owned Materials following the expiration or termination of the Term or termination of the Service(s) for which such Materials were used. Such license shall be limited to the use of such Supplier Owned Materials by Hercules and the Eligible Recipients (or, at Hercules’ direction, their designee) to provide for Hercules and the Eligible Recipients, or have provided for them by a Third Party Contractor, services similar to the Services and for Hercules and the Eligible Recipients to receive such services;

(ii)

(iii)

At Hercules’ request, Supplier shall provide to Hercules and the Eligible Recipients (and at Hercules’ request and subject to Section 13.1, Hercules Third Party Contractors that sign a written agreement with Hercules to be bound by terms at least as protective as the terms contained herein applicable to such Materials) Upgrades, maintenance, support and other services for such Supplier Owned Materials on reasonable commercial terms and conditions, which shall include pricing no less favorable than the pricing customarily charged to other commercial customers receiving equivalent services. If Supplier fails to offer or provide Upgrades, maintenance, support or other services, Supplier shall deliver source code and object code for such Supplier Owned Materials to the extent such Materials include source code, together with the right to modify, enhance and create derivative works of such Materials.

Unless Hercules otherwise agrees prior to Supplier’s first use of such non-commercially available Supplier Owned Material in the performance of the Services, Hercules and the Eligible Recipients (and, to the extent applicable, Hercules’ designee(s)) shall not be obligated to pay any license or transfer fees in connection with its receipt of the licenses and other rights above.

Supplier shall not use any non-commercially available Supplier Owned Materials for which it is unwilling or unable to grant some or all of the license or other rights described above unless and to the extent Hercules agrees to forego such rights prior to Supplier’s first use of such Third Party Material in the performance of the Services and such agreement is memorialized in Schedule E.1. In seeking Hercules’ approval, Supplier may propose alternative terms, such as a fee for such license, a limitation on the use of such Materials by a Hercules Third Party Contractor, and/or the substitution of a functionally equivalent product.

(d)

Third Party Materials. Unless Hercules otherwise agrees in advance in accordance with Section 6.4(c), with respect to Third Party Materials licensed by Supplier or Supplier Affiliates or Subcontractors and used by them to provide the Services, Supplier hereby grants to Hercules and the Eligible Recipients (or, at Hercules' election, to their designee(s)) a sublicense (with the right to grant sublicenses) offering the same rights and warranties with respect to such Third Party Materials available to Supplier (or Supplier Affiliates or Subcontractors), on the same terms and conditions, for the benefit and use of Hercules, Hercules Affiliates and the Eligible Recipients upon the expiration or termination of the Term; provided that, during the Termination Assistance Services period, Supplier may, with Hercules' approval, substitute one of the following for such sublicense:

(i)

the assignment to Hercules and the Eligible Recipients (or, at Hercules' election, to their designee(s))of the underlying license for such Third Party Materials;

(ii)

the procurement for Hercules and the Eligible Recipients (or, at Hercules' election, to their designee(s)) of a new license (with terms at least as favorable as those in the license held by Supplier or its Affiliates or Subcontractors and with the right to grant sublicenses) to such Third Party Materials for the benefit or use of Hercules, Hercules Affiliates and the Eligible Recipients; or

(iii)

the procurement for Hercules and the Eligible Recipients (or, at Hercules' election, to their designee(s)) of a substitute license for Third Party Materials sufficient to perform, without additional cost, support or resources and at the levels of performance and efficiency required by this Agreement, the functions of the Third Party Materials necessary to enable Hercules or its designee to provide the Services after the expiration or termination of the Term.

In addition, Supplier shall deliver to Hercules and the Eligible Recipients (or, at Hercules' election, to their designee(s)) a copy of such Third Party Materials (including source code, to the extent it has been available to Supplier) and related documentation and shall cause maintenance, support and other services to continue to be available to Hercules and the Eligible Recipients (or, at Hercules' election, to their designee(s)) to the extent it has been available to Supplier. Unless Hercules has otherwise agreed in advance in accordance with Section 6.4(c), Hercules and the Eligible Recipients (and, to the extent applicable, Hercules' designee(s)) shall not be obligated to pay any license or transfer fees in connection with its receipt of the licenses, sublicenses and other rights specified in this Section 14.6(c). Supplier shall not use any Third Party Materials for which it is unable to offer such license, sublicense or other rights without Hercules' prior approval (and absent such approval, Supplier’s use of any such Third Party Materials shall obligate Supplier to provide, at no additional cost, such licenses, sublicenses and other rights). Hercules, however, shall be obligated to make monthly or annual payments attributable to periods after the expiration or termination of the Term with respect to the Services for which such Third Party Materials were used for the right to use and receive maintenance or support related thereto, but only to the extent Supplier would have been obligated to make such payments if it had continued to hold the licenses in question or Hercules has agreed in advance to make such payments.

To the extent Hercules has agreed in advance to pay any fees in connection with its receipt of such licenses, sublicenses or other rights, Supplier shall, at Hercules' request, identify the licensing and sublicensing options available to Hercules and the Eligible Recipients and the license or transfer fees associated with each. Supplier shall use commercially reasonable efforts to obtain the most favorable options and the lowest possible transfer, license, relicense, assignment or termination fees for Third Party Materials. Supplier shall not commit Hercules or the Eligible Recipients to paying any such fees or expenses without Hercules' prior approval. If the licensor offers more than one form of license, Hercules (not Supplier) shall select the form of license to be received by Hercules, the Eligible Recipients or their designee(s).

15 REPRESENTATIONS, WARRANTIES AND COVENANTS

15.1 Work Standards.

Supplier represents, warrants and covenants that: (i) the Services shall be rendered with promptness, due care, skill and diligence; (ii) the Services shall be executed in a workmanlike manner, in accordance with the best practices of leading providers of BPO/ADM services and the Service Levels; (iii) Supplier shall use adequate numbers of qualified individuals with suitable training, education, experience, know-how, competence and skill to perform the Services; (iv) Supplier shall provide such individuals with training as to new products and services prior to the implementation of such products and services in the Hercules/Eligible Recipients environment; and (v) Supplier shall have the resources, capacity, expertise and ability in terms of Equipment, Software, know-how and personnel to provide the Services.

15.2 Software.

(a)

Ownership and Use. Supplier represents, warrants and covenants that it is either the owner of, or authorized to use, any and all Software provided and used by Supplier in providing the Services. As to any such Software that Supplier does not own but is authorized to use, Supplier shall advise Hercules as to the ownership and extent of Supplier’s rights with regard to such Software to the extent any limitation in such rights would impair Supplier’s performance of its obligations under this Agreement.

(b)

Performance. Supplier represents, warrants and covenants that any Supplier Owned Software will perform in conformance with its Specifications and will provide the functions and features and operate in the manner described therein.

(c)

Developed Materials Compliance. Supplier warrants and covenants that Developed Materials will be free from material errors in operation and performance, will Comply with the applicable documentation and the Specifications in all material respects, including any applicable Year 2000 Compliance requirements, and will provide the functions and features and operate in the manner described in this Agreement or otherwise agreed by the Parties. Supplier shall correct any failure to Comply at no additional charge to Hercules and shall use commercially reasonable efforts to do so as expeditiously as possible. In the event that Supplier fails or is unable to repair or replace such nonconforming Developed Material, Hercules shall, in addition to any and all other remedies available to it hereunder, be entitled to obtain from Supplier a copy of the source code and/or object code to such Developed Material.

(d)

Nonconformity of Supplier Owned Software. In the event that Supplier Owned Software (excluding Supplier owned Developed Materials, which are addressed in Section 15.2(c)) does not conform to the Specifications and criteria set forth in this Agreement, and/or materially adversely affects the Services provided hereunder, Supplier shall expeditiously repair such Software or replace such Software with conforming Software.

15.3 Non-Infringement.

(a)

Performance of Responsibilities. Except as otherwise provided in this Agreement, each Party represents, warrants and covenants that it shall perform its responsibilities under this Agreement in a manner that does not infringe, or constitute an infringement or misappropriation of, any patent, copyright, trademark, trade secret or other proprietary or privacy rights of any third party; provided, however, that the performing Party shall not have any obligation or liability to the extent any infringement or misappropriation is caused by (i) modifications made by the other Party or its contractors or subcontractors, without the knowledge or approval of the performing Party, (ii) the other Party’s combination of the performing Party’s work product or Materials with items not furnished, specified or reasonably anticipated by the performing Party or contemplated by this Agreement, (iii) a breach of this Agreement by the other Party, (iv) the failure of the other Party to use corrections or modifications provided by the performing Party offering equivalent features and functionality, or (v) Third Party Software, except to the extent that such infringement or misappropriation arises from the failure of the performing Party to obtain the necessary licenses or Required Consents or to abide by the limitations of the applicable Third Party Software licenses. Each Party further represents, warrants and covenants that it will not use or create materials in connection with the Services which are libelous, defamatory or obscene.

(b)

Third Party Software Indemnification.

(i)

With respect to Third Party Software provided by a Party pursuant to this Agreement, such Party covenants that it shall (i) obtain intellectual property indemnification from the third party supplier of such Software for the other Party and, where relevant, the Eligible Recipients to the extent such indemnification is legally permissible and available from such third party supplier on a commercially reasonable basis, and (ii) enforce the intellectual property indemnification rights obtained from the third party supplier of such Software on behalf of the other Party, and, where relevant, the Eligible Recipients, to the extent such enforcement is legally and contractually permissible. Notwithstanding the foregoing, Hercules shall not be obligated to renegotiate the terms

of its existing Third Party Software licenses to obtain intellectual property indemnification or to modify the terms of such licenses with respect to such indemnification.

(ii)

If a third party intellectual property infringement claim is asserted against a Party (or, where relevant, an Eligible Recipient) based on its use of such Third Party Software, the Party providing such Third Party Software shall tender such claim to the third party supplier of such Software and invoke its right to indemnification with respect to such claim. If the Party providing such Third Party Software does not possess such indemnification rights or the right to enforce them on behalf of the other Party (or, where relevant, the Eligible Recipient), the Party against whom the claim is asserted may cease using such Third Party Software. Subject to Section 15.3(b)(iv), the Party providing such Third Party Software shall have no obligation to indemnify the other Party in such circumstances and shall have no responsibility for Losses incurred by such other Party as a result of its past or continued use of such Third Party Software, except as provided in Section 15.3(b)(iv).

(iii)

Subject to Section 15.3(b)(iv), if Supplier ceases its use of Third Party Software provided by Hercules under the circumstances described in Section 15.3(b)(iii) and, as a direct result, Supplier is unable to perform certain Services or meet certain Service Levels, Supplier shall be relieved of responsibility for such Services and/or Service Level, but only if and to the extent Supplier (A) expeditiously notifies Hercules of its inability to perform under such circumstances, (B) cooperates with Hercules to address the resulting problem and thereby avoid any non-performance, and (C) uses commercially reasonable efforts to perform notwithstanding the unavailability of such Third Party Software. In addition, Hercules shall pay the applicable labor rate(s) for additional Supplier Personnel reasonably required by Supplier to perform under such circumstances and for the incremental Out-of-Pocket Expenses reasonably incurred by Supplier in doing so; provided that Supplier notifies Hercules of such additional required personnel and incremental Out-of-Pocket Expenses, obtains Hercules' approval prior to using such personnel or incurring such expenses, and uses commercially reasonable efforts to minimize such personnel and expenses. Supplier shall resume normal performance if and when the Parties obtain the right for Supplier to continue using such Third Party Software product, modify the item in question or its use so that it is no longer infringing, or replace such item with a non-infringing functional equivalent product.

(iv)

Notwithstanding Sections 15.3(b)(ii) and (iii), Hercules reserves the right to direct Supplier to continue using a Hercules provided Third Party Software product despite the assertion of a third party intellectual property infringement claim against Supplier with respect to such product. If Hercules elects to do so, Hercules shall indemnify, defend and hold Supplier harmless from any Losses resulting from Supplier's prior or continued use of such Third Party Software product, all in accordance with Sections 17.2(e) and 17.5.

15.4 Authorization.

Each Party represents, warrants and covenants to the other that:

(a)

Corporate Existence. It is a corporation duly incorporated, validly existing and in good standing under the Laws of its State of incorporation;

(b)

Corporate Power and Authority. It has the requisite corporate power and authority to execute, deliver and perform its obligations under this Agreement;

(c)

Legal Authority. It has obtained all licenses, authorizations, approvals, consents or permits required to perform its obligations under this Agreement under all applicable federal, state or local laws and under all applicable rules and regulations of all authorities having jurisdiction over the Services, except to the extent the failure to obtain any such license, authorizations, approvals, consents or permits is, in the aggregate, immaterial;

(d)

Due Authorization. The execution, delivery and performance of this Agreement and the consummation of the transactions contemplated by this Agreement have been duly authorized by the requisite corporate action on the part of such Party; and

(e)

No Violation or Conflict. The execution, delivery, and performance of this Agreement shall not constitute a violation of any judgment, order, or decree; a material default under any material contract by which it or any of its material assets are bound; or an event that would, with notice or lapse of time, or both, constitute such a default.

15.5 Inducements; Hercules Business Practices Policy.

(a)

Inducements. Supplier represents, warrants and covenants that it has not given and will not give commissions, payments, kickbacks, lavish or extensive entertainment, or other inducements of more than minimal value (as defined in the Hercules Business Practices Policy) to any employee or agent of Hercules in connection with this Agreement. Supplier also represents, warrants and covenants that, to the best of its knowledge, no officer, director, employee, agent or representative of Supplier has given any such payments, gifts, entertainment or other thing of value to any employee or agent of Hercules. Supplier also acknowledges that the giving of any such payments, gifts, entertainment, or other thing of value is strictly in violation of Hercules policy on conflicts of interest, and may result in the cancellation of this Agreement and other existing and future contracts between the Parties.

(b)

Hercules Business Practices Policy. Supplier represents, warrants and covenants that, in the performance of the Services and its other contractual obligations hereunder, it shall comply with the Hercules Business Practices Policy, as set forth in Attachment T.3, as such Business Practices Policy may be reasonably modified from time to time.

15.6 Disabling Code.

Supplier represents, warrants and covenants that, without the prior written consent of Hercules, Supplier shall not insert into the Software any code that could be invoked to disable or otherwise shut down all or any portion of the Services. Supplier further represents, warrants and covenants that, with respect to any disabling code that may be part of the Software, Supplier shall not invoke or cause to be invoked such disabling code at any time, including upon expiration or termination of this Agreement for any reason, without Hercules' prior written consent. Supplier also represents, warrants and covenants that it shall not intentionally use Third Party Software containing disabling code without the prior approval of Hercules. For purposes of this provision, code that serves the function of ensuring software license compliance (including passwords) shall not be deemed disabling code, provided that Supplier notifies Hercules in advance of all such code and obtains Hercules' approval prior to installing such code in any Software, Equipment or System.

15.7 Compliance with Laws.

(a)

Compliance by Supplier. Subject to Section 15.7(b), (e), (f) and (g), Supplier represents, warrants and covenants that, with respect to the provision of the Services and the performance of any of its other legal and contractual obligations hereunder, it is and shall be in compliance with all applicable Laws on the Commencement Date and shall remain in compliance with such Laws for the Term and any Termination Assistance Services period, including identifying and procuring applicable permits, certificates, approvals and inspections required under such Laws. If a charge of non-compliance by Supplier with any such Laws occurs, Supplier shall promptly notify Hercules of such charge.

(b)

Compliance by Hercules. Subject to Section 15.7(a), (e) and (f), Hercules represents and warrants that, with respect to the performance by Hercules and the Eligible Recipients of Hercules' legal and contractual obligations under this Agreement, it is and shall be in compliance in all material respects with all applicable Laws for the entire Term of the Agreement. If a written charge of non-compliance by Hercules with any such Laws occurs, Hercules shall promptly notify Supplier of such charge.

(c)

Compliance Data and Reports. At no additional charge, Supplier shall provide Hercules with data and reports in Supplier’s possession necessary for Hercules to comply with all Laws applicable to the Services. At Supplier's request, Hercules shall provide Supplier with data and reports in Hercules’ possession necessary for Supplier to comply with any Laws specifically applicable to Supplier and its performance of the Services.

(d)

Software, Equipment, Systems and Materials Compliance. Supplier covenants that the Software, Equipment, Systems and Materials owned, provided or used by Supplier in providing the Services are in compliance with all applicable Laws on the Commencement Date and shall remain in compliance with such Laws for the Term and any Termination Assistance Services period.

(e)

Notice of Laws. Supplier shall notify Hercules of any Laws and changes in Laws applicable to Supplier as a provider of BPO/ADM services and other in-scope services, including those Laws applicable to the employment of Supplier Personnel and the provision of Services from jurisdictions in which Supplier Facilities are located (“Supplier Laws”). The definition of Supplier Laws also shall include Laws applicable to (i) the technical, organizational and security measures associated with safeguarding Personal Data to be implemented and maintained by Supplier and at Supplier Facilities, and (ii) restrictions or prohibitions on the use or disclosure of Personal Data made available to Supplier under this Agreement. Hercules shall notify Supplier of any other Laws and any changes in such other Laws applicable to the provision or receipt of the Services (collectively, “Hercules Laws”).

During the Transition Period, the Parties shall identify any additional Laws or areas of Law (i) as to which the displaced Hercules Personnel were responsible for keeping Hercules apprised prior to the Commencement Date, or (ii) for which Supplier can readily assume such responsibility. If such Laws or areas of Law are identified, the Parties shall confer in good faith as to the addition of such Laws or areas of Law to the definition of Supplier Laws and shall use commercially reasonable efforts to avoid or minimize to the extent practicable any increase in the applicable Charges.

Supplier shall, through the Supplier Personnel, maintain general familiarity with Hercules Laws, and shall bring additional or changed requirements that Supplier is aware of to Hercules' attention. Subject to its non-disclosure obligation under other customer contracts, Supplier also shall make commercially reasonable efforts to obtain information regarding such requirements from other outsourcing customer engagements and to communicate such information to Hercules in a timely manner. Each Party shall use commercially reasonable efforts to advise the other of Laws and changes in Laws about which such Party becomes aware in the other Party's area of responsibility, but without assuming an affirmative obligation of inquiry, except as otherwise provided herein, and without relieving the other Party of its obligations hereunder. At Hercules' request, Supplier Personnel shall participate in Hercules provided compliance training programs.

(f)

Interpretation of Laws or Changes in Laws. Hercules shall be responsible, with Supplier’s cooperation and assistance, for interpreting Hercules Laws or changes in Hercules Laws and for identifying the impact of such Hercules Laws or changes in Hercules Laws on Supplier’s performance and Hercules' and/or the Eligible Recipients' receipt and use of the Services. Supplier shall be responsible, with Hercules' cooperation and assistance, for interpreting Supplier Laws or changes in Supplier Laws and for identifying the impact of such Supplier Laws or changes in Supplier Laws on Supplier’s performance and Hercules' and/or the Eligible Recipients' receipt and use of the Services. To the extent the impact of any Supplier Law or change in Supplier Law cannot be readily identified by Supplier, the Parties shall cooperate in interpreting such Law or change in Law and shall seek in good faith to identify and agree upon the impact on Supplier’s performance and Hercules' and/or the Eligible Recipients' receipt and use of the Services. If the Parties are unable to agree upon such impact, Hercules shall retain the right, in its sole discretion, to interpret such Supplier Law or change in Supplier Law and determine its impact. In addition, if Supplier reasonably concludes, after due inquiry, that the compliance obligations associated with any Supplier Law or change in Supplier Law are unclear or that there is more than one reasonable approach to achieving compliance, Supplier may escalate the issue to Hercules for a final decision.

(g)

Implementation of Changes in Laws. In the event of any changes in Laws (including Hercules Laws to the extent Supplier receives notice of such Hercules Laws from Hercules or as otherwise provided in Section

15.7(e)), Supplier shall implement any necessary modifications to the Services prior to the deadline imposed by the regulatory or governmental body having jurisdiction for such requirement or change. Supplier shall bear the costs associated with compliance with such changes in Laws applicable to the Services, unless such change meets the definition of New Service, in which case it shall be treated as a Project (and provided that, to the extent the benefits of such a Project are to be made available to one or more other Supplier customers, the Charges and/or number of FTE hours associated with such Project shall be allocated on a pro rata basis to Hercules and such other Supplier customer(s)). At Hercules' request, Supplier Personnel shall participate in Hercules provided regulatory compliance training programs.

(h)

Export Control. The Parties acknowledge that certain Software and technical data to be provided hereunder and certain transactions hereunder may be subject to export controls under the laws and regulations of the United States, the European Union, the United Nations and other jurisdictions. No Party shall export or re-export any such items or any direct product thereof or undertake any transaction or service in violation of any such laws or regulations. To the extent within Supplier’s control, Supplier shall be responsible for, and shall coordinate and oversee, compliance with such export laws in respect of such items exported or imported hereunder.

(i)

Responsibility. Subject to Section 15.7(e), Supplier shall be responsible for any Losses imposed on Supplier, Hercules or the Eligible Recipients resulting from any failure of Supplier or its Subcontractors or third party product or service providers to comply with applicable Laws or respond in a timely manner to changes in such Laws, unless and to the extent such failure directly results from the sole acts or omissions of Hercules, an Eligible Recipient or a Hercules Third Party Contractor in contravention of Hercules' obligations under this Agreement, including Hercules' obligation under Sections 15.7(e) to notify Supplier of Hercules Laws and changes in such Laws.

(j)

Assistance to Hercules. As part of the Services and on an ongoing basis, Supplier shall assist Hercules and the Eligible Recipients as they may reasonably require in their efforts to comply with applicable Laws (including any changes to Laws) not applicable to Supplier or related to the Services.

15.8 Interoperability; Currency.

(a)

Interoperability. Subject to Section 9.6 and the applicable Change Control Procedures, Supplier covenants that the Software, Equipment and Systems used by Supplier to provide the Services are fully compatible and interoperable with the Retained Systems and Business Processes (including the software, equipment and systems used by Hercules or the Eligible Recipients to provide the same or similar services and/or which may deliver records to, receive records from, or otherwise interact with the Software, Equipment and Systems used by Supplier to receive the Services) as of the Commencement Date and remain compatible and interoperable with such Retained Systems and Business Processes during the Term and any Termination Assistance Services period.

(b)

Monetary Currencies. Supplier represents, warrants and covenants that the Software, Equipment, Systems and Services provided and/or used by Supplier will be able to receive, transmit, process, store, archive, maintain and support all applicable monetary currencies, including the currencies of all countries specified in Exhibit 2.

15.9 Disclaimer.

EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY REPRESENTATIONS, CONDITIONS OR WARRANTIES TO THE OTHER PARTY, WHETHER EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE .

16 INSURANCE AND RISK OF LOSS

16.1 Insurance.

(a)

Requirements. Supplier agrees to keep in full force and effect and maintain at its sole cost and expense the following policies of insurance with the specified minimum limits of liability during the term of this Agreement:

(i)

Workers’ Compensation, Employer’s Liability covering employees for occupational illnesses and injuries in full compliance with the applicable Laws of the state and/or country in which the work is to be performed or the country of hire (whichever is applicable).

(i)

The limits of liability of Workers’ Compensation, Employers’ Liability shall be not less than the limits required by applicable Law.

(ii)

In addition, in the United States the limits of liability of Employer’s Liability Insurance shall be minimum limits of $1 million per employee by accident/$1 million per employee by disease (or, if higher, the limits required by applicable Law).

(ii)

Commercial General Liability Insurance (including coverage for Contractual Liability assumed by Supplier under this Agreement, Premises-Operations, Completed Operations—Products, and Independent Contractors) providing coverage for bodily injury and property damage with limits of not less than $5 million per occurrence and $5 million in annual aggregate. This insurance coverage may be provided through any combination of Supplier's primary and Umbrella /Excess Liability Insurance policies, all of which comply with the requirements stated in Sections 16.1(b) and (c).

(iii)

Commercial Business Automobile Liability Insurance including coverage for all owned, non-owned, leased, and hired vehicles providing coverage for bodily injury and property damage liability with combined single limits of not less than $5 million per occurrence. This insurance coverage may be provided through any combination of Supplier's primary and Umbrella /Excess Liability Insurance policies, all of which comply with the requirements stated in Sections 16.1(b) and (c). If Services are performed outside the United States, Supplier shall maintain required compulsory insurance.

(iv)

Professional Liability (also known as Errors and Omissions Liability) Insurance, including omissions coverage, covering acts, errors and omissions arising out of Supplier’s operations or Services in an amount not less than $10 million per occurrence and $10 million in the annual aggregate. Supplier shall continue to purchase such coverage for a period of at least two (2) years from the termination or expiration of this Agreement.

(v)

Comprehensive Crime Insurance, including employee dishonesty and computer fraud coverage and a third party extension, covering losses arising out of or in connection with any fraudulent or dishonest acts committed by Supplier employees, acting alone or with others, in an amount not less than $10 million per occurrence and in annual aggregate.

(vi)

All Risk Property Damage covering all assets owned by Supplier, for the replacement value of such assets.

The above stated insurance coverage may be provided through any combination of Supplier’s primary and excess insurance policies, all of which shall comply with the requirements stated in Sections 16.1(b) and (c).

(b)

Approved Companies. All such insurance shall be procured with reputable insurance companies and in such form as is usual and customary to Supplier’s business. Such insurance companies shall maintain a rating at least “A-” and be at least a Financial Size Category VII as both criteria are defined in the most current publication of Best’s Policyholder Guide.

(c)

Endorsements. Supplier’s insurance policies as required herein under Section 16.1(a)(ii), including any umbrella/excess liability policies, shall name Hercules as Additional Insureds for any and all liability arising at any time in connection with Supplier’s or Supplier Personnel’s performance under this Agreement. All insurance required under this Section 16.1 shall be primary and non-contributing insurance and any other valid insurance existing for Hercules' benefit shall be excess of such primary insurance.

(d)

Certificates. Supplier shall provide Hercules with certificates of insurance evidencing compliance with this Article 16 (including evidence of renewal of insurance) signed by authorized representatives of the respective carriers for each year that this Agreement is in effect. Each certificate of insurance shall provide for notice of such cancellation, reduction or adverse material alteration has been provided at least thirty (30) days in advance to Hercules in accordance with Section 21.3(a).

(e)

No Implied Limitation. The obligation of Supplier and its Affiliates to provide the insurance specified herein shall not limit in any way any obligation or liability of Supplier provided elsewhere in this Agreement. The rights of Hercules and its subsidiaries, Affiliates and Eligible Recipients to insurance coverage under policies issued to or for the benefit of one or more of them are independent of this Agreement and shall not be limited by this Agreement.

(f)

Insurance Subrogation. With respect to insurance coverage to be provided by Supplier pursuant to this Section 16.1(a) (i), (ii), (iii) and (vi), the insurance policies shall provide that the insurance companies waive all rights of subrogation against Supplier, Hercules, the Eligible Recipients and their respective Affiliates, officers, directors and employees.

16.2 Risk of Loss.

(a)

General. Supplier and Hercules each shall be responsible for any damage, destruction, loss or theft of their respective tangible property or real property (whether owned or leased) and each Party agrees to look only to its own insuring arrangements (if any) with respect to such damage, destruction, loss or theft. Each Party shall promptly notify the other Party of any damage (except normal wear and tear), destruction, loss, theft, or governmental taking of such other Party’s tangible property or real property (whether owned or leased) and cooperate with such other Party in seeking to recover for such damage or loss.

(b)

Waiver. Supplier and Hercules hereby waive, on behalf of themselves and shall cause their respective insurers to issue appropriate waivers of subrogation rights for, any claims that either may have against the other for loss or damage resulting from perils covered by the All Risk Property Damage. It is understood that this waiver is intended to extend to all such loss or damage whether or not the same is caused by the fault or neglect of either Supplier or Hercules and whether or not insurance is in force.

17 INDEMNITIES

17.1 Indemnity by Supplier.

Supplier agrees to indemnify, defend and hold harmless Hercules and its Affiliates and the Eligible Recipients and their respective officers, directors, employees, agents, representatives, successors, and assigns from any and all Losses and threatened Losses due to non-party claims arising from or in connection with any of the following:

(a)

Representations, Warranties and Covenants. Supplier’s breach of any of the representations, warranties and covenants set forth herein.

(b)

Reserved.

(c)

Licenses, Leases and Contracts. Supplier’s failure to observe or perform any duties or obligations to be observed or performed on or after the Commencement Date by Supplier under Third Party Software licenses, Equipment leases or Third Party Contracts used by Supplier to provide the Services.

(d)

Hercules Data or Confidential Information. Supplier’s breach of its obligations with respect to Hercules Data, Hercules Personal Data or Hercules Confidential Information.

(e)

Infringement. Infringement or misappropriation or alleged infringement or alleged misappropriation of a patent, trade secret, copyright or other proprietary rights in contravention of Supplier’s representations, warranties and covenants in Sections 15.2 and 15.3.

(f)

Compliance with Laws. Losses, including government fines, penalties, sanctions, interest or other remedies resulting from Supplier’s failure to perform its responsibilities under this Agreement.

(g)

Taxes. Taxes, together with interest and penalties, that are the responsibility of Supplier under Section 11.4.

(h)

Shared Facility Services. Services, products or systems provided by Supplier to a third party from any shared Supplier facility or using any shared Supplier resources and not constituting Services provided to an Eligible Recipient pursuant to this Agreement.

(i)

Affiliate, Subcontractor or Assignee Claims. Any claim, other than an indemnification claim under this Agreement, initiated by (i) a Supplier Affiliate or Subcontractor asserting rights under this Agreement against an indemnified party or (ii) any entity to which Supplier assigned, transferred, pledged, hypothecated or otherwise encumbered its rights to receive payments from Hercules under this Agreement.

(j)

Supplier Personnel Injury Claims. Any claim by Supplier Personnel for death, bodily injury, or illness, except to the extent caused by Hercules' gross negligence or willful misconduct.

(k)

Employment Claims. Any claim relating to any (i) violation by Supplier, Supplier Affiliates or Subcontractors, or their respective officers, directors, employees, representatives or agents, of any Laws or any common law protecting persons or members of protected classes or categories, including Laws prohibiting discrimination or harassment on the basis of a protected characteristic; (ii) liability arising or resulting from the employment of Supplier Personnel by Supplier, Supplier Affiliates or Subcontractors (including liability for any social security or other employment taxes, workers’ compensation claims and premium payments, and contributions applicable to the wages and salaries of such Supplier Personnel); (iii) payment or failure to pay any salary, wages or other cash compensation due and owing to any Supplier Personnel, (iv) employee pension or other benefits of any Supplier Personnel accruing from and after their Employment Effective Date, and/or (v) other aspects of the employment relationship of Supplier Personnel with Supplier, Supplier Affiliates or Subcontractors or the termination of such relationship, including claims for wrongful discharge, claims for breach of express or implied employment contract and claims of co-employment or joint employment (unless and to the extent such claims of joint employment are based in material part on acts of Hercules or the Eligible Recipients inconsistent with Hercules’ rights and obligations under this Agreement and Supplier’s status as an independent contractor), except, in each case, to the extent resulting from the wrongful actions of Hercules, the Eligible Recipients, or Hercules Third Party Contractors, errors or inaccuracies in the information provided by Hercules and faithfully communicated by Supplier or the failure of Hercules, the Eligible Recipients, or Hercules Third Party Contractors to comply with Hercules' responsibilities under this Agreement.

17.2 Indemnity by Hercules.

Hercules agrees to indemnify, defend and hold harmless Supplier and its officers, directors, employees, agents, representatives, successors, and assigns, from any Losses and threatened Losses due to non- party claims arising from or in connection with any of the following:

(a)

Representations, Warranties and Covenants. Hercules breach of any of the representations, warranties and covenants set forth herein.

(b)

Licenses, Leases or Contracts. Hercules' failure to observe or perform any duties or obligations to be observed or performed by Hercules under any of the applicable Third Party Software licenses, Equipment Leases or Third Party Contracts to the extent Hercules is financially or operationally responsible under this Agreement.

(c)

Reserved.

(d)

Supplier’s Confidential Information. Hercules breach of its obligations with respect to Supplier’s Confidential Information.

(e)

Infringement. Infringement or misappropriation or alleged infringement or alleged misappropriation of a patent, trade secret, copyright or other proprietary rights in contravention of Hercules' representations, warranties and covenants in Section 15.3 (including Section 15.3(b)(iv)).

(f)

Taxes. Taxes, together with interest and penalties, that are the responsibility of Hercules under Section 11.4.

(g)

Hercules Affiliate, Eligible Recipient or Third Party Contractor Claims. Any claim, other than an indemnification claim or insurance claim under this Agreement, initiated by a Hercules Affiliate, an Eligible Recipient (other than Hercules) or a Hercules Third Party Contractor asserting rights under this Agreement against an indemnified party.

(h)

Employment Claims. Any claim relating to any: violation by Hercules, its Affiliates or Eligible Recipients, or their respective officers, directors, employees, representatives or agents, of any Laws or any common law protecting persons or members of protected classes or categories, including Laws prohibiting discrimination or harassment on the basis of a protected characteristic, except to the extent resulting from the wrongful actions of Supplier, Supplier Affiliates or Subcontractors (or their respective officers, directors, employees, representatives or agents), errors or inaccuracies in the information provided by Supplier and faithfully communicated by Hercules, or the failure of Supplier, Supplier Affiliates or Subcontractors (or their respective officers, directors, employees, representatives or agents) to comply with Supplier’s responsibilities under this Agreement.

17.3 Additional Indemnities.

Supplier and Hercules each agree to indemnify, defend and hold harmless the other, and the Eligible Recipients and their respective Affiliates, officers, directors, employees, agents, representatives, successors, and assigns, from any and all Losses and threatened Losses to the extent they arise from or in connection with any of the following: (a) except as otherwise provided in Section 17.1(j), the death or bodily injury of any agent, employee, customer, business invitee, business visitor or other person caused by the negligence or other tortious conduct of the indemnitor or the failure of the indemnitor to comply with its obligations under this Agreement; and (b) except as otherwise provided in Section 16.2, the damage, loss or destruction of any real or tangible personal property caused by the negligence or other tortious conduct of the indemnitor or the failure of the indemnitor to comply with its obligations under this Agreement.

17.4 Infringement.

In the event that (1) any Software, Equipment, Materials, or Services provided by Supplier or its Affiliates or Subcontractors pursuant to this Agreement or used by them in the performance of the Services are found, or in

Hercules' reasonable opinion are likely to be found, to infringe upon the patent, copyright, trademark, trade secrets, intellectual property or proprietary rights of any third party in any country in which Services are to be performed or received under this Agreement, or (2) the continued use of such Software, Equipment or Materials are enjoined, Supplier shall, in addition to defending, indemnifying and holding harmless Hercules as provided in Section 17.1(e) and to the other rights Hercules may have under this Agreement, promptly and at its own cost and expense and in such a manner as to minimize the disturbance to Hercules' and the Eligible Recipients’ business activities do one of the following:

(a)

Obtain Rights. Obtain for Hercules and the Eligible Recipients the right to continue using such Software, Equipment or Materials.

(b)

Modification. Modify the item(s) in question so that it is no longer infringing (provided that such modification does not degrade the performance or quality of the Services or adversely affect Hercules' and the Eligible Recipients’ intended use as contemplated by this Agreement).

(c)

Replacement. Replace such item(s) with a non-infringing functional equivalent acceptable to Hercules.

17.5 Indemnification Procedures.

With respect to non-Party claims which are subject to indemnification under this Agreement (other than as provided in Section 17.6 with respect to claims covered by Section 17.1(f)), the following procedures shall apply:

(a)

Notice. Promptly after receipt by any entity entitled to indemnification under this Agreement of notice of the commencement or threatened commencement of any civil, criminal, administrative, or investigative action or proceeding involving a claim in respect of which the indemnitee will seek indemnification hereunder, the indemnitee shall notify the indemnitor of such claim. No delay or failure to so notify an indemnitor shall relieve it of its obligations under this Agreement except to the extent that such indemnitor has suffered actual prejudice by such delay or failure. Within fifteen (15) days following receipt of notice from the indemnitee relating to any claim, but no later than five (5) days before the date on which any response to a complaint or summons is due, the indemnitor shall notify the indemnitee that the indemnitor elects to assume control of the defense and settlement of that claim (a “Notice of Election”).

(b)

Procedure Following Notice of Election. If the indemnitor delivers a Notice of Election within the required notice period, the indemnitor shall assume sole control over the defense and settlement of the claim; provided, however, that (i) the indemnitor shall keep the indemnitee fully apprised at all times as to the status of the defense, and (ii) the indemnitor shall obtain the prior written approval of the indemnitee before entering into any settlement of such claim asserting any liability against the indemnitee or imposing any obligations or restrictions on the indemnitee or ceasing to defend against such claim. The indemnitor shall not be liable for any legal fees or expenses incurred by the indemnitee following the delivery of a Notice of Election; provided, however, that (i) the indemnitee shall be entitled to employ counsel at its own expense to participate in the handling of the claim, and (ii) the indemnitor shall pay the fees and expenses associated with such counsel if there is a conflict of interest with respect to such claim which is not otherwise resolved or if the indemnitor has requested the assistance of the indemnitee in the defense of the claim or the indemnitor has failed to defend the claim diligently and the indemnitee is prejudiced or likely to be prejudiced by such failure. The indemnitor shall not be obligated to indemnify the indemnitee for any amount paid or payable by such indemnitee in the settlement of any claim if (i) the indemnitor has delivered a timely Notice of Election and such amount was agreed to without the written consent of the indemnitor, (ii) the indemnitee has not provided the indemnitor with notice of such claim and a reasonable opportunity to respond thereto, or (iii) the time period within which to deliver a Notice of Election has not yet expired.

(c)

Procedure Where No Notice of Election Is Delivered. If the indemnitor does not deliver a Notice of Election relating to any claim within the required notice period, the indemnitee shall have the right to defend the claim in such manner as it may deem appropriate. The indemnitor shall promptly reimburse the indemnitee for all such reasonable costs and expenses incurred by the indemnitee, including reasonable attorneys’ fees.

17.6 Indemnification Procedures - Governmental Claims.

With respect to claims covered by Section 17.1(f), the following procedures shall apply:

(a)

Notice. Promptly after receipt by Hercules of notice of the commencement or threatened commencement of any action or proceeding involving a claim in respect of which the indemnitee will seek indemnification pursuant to Section 17.1(f), Hercules shall notify Supplier of such claim. No delay or failure to so notify Supplier shall relieve Supplier of its obligations under this Agreement except to the extent that Supplier has suffered actual prejudice by such delay or failure.

(b)

Procedure for Defense. Hercules shall be entitled, at its option, to have the claim handled pursuant to Section 17.5 or to retain sole control over the defense and settlement of such claim; provided that, in the latter case, Hercules shall (i) consult with Supplier on a regular basis regarding claim processing (including actual and anticipated costs and expenses) and litigation strategy, (ii) reasonably consider any Supplier settlement proposals or suggestions, and (iii) use commercially reasonable efforts to minimize any amounts payable or reimbursable by Supplier.

17.7 Subrogation.

Except as otherwise provided in Sections 16.1, in the event that an indemnitor shall be obligated to indemnify an indemnitee pursuant to any provision of this Agreement, the indemnitor shall, upon payment of such indemnity in full, be subrogated to all rights of the indemnitee with respect to the claims to which such indemnification relates.

18 LIABILITY

18.1 General Intent.

Subject to the specific provisions and limitations of this Article 18, it is the intent of the Parties that each Party shall be liable to the other Party for any actual damages incurred by the non-breaching Party as a result of the breaching Party’s failure to perform its obligations in the manner required by this Agreement.

18.2 Force Majeure.

(a)

General. Subject to Section 18.2(d), no Party shall be liable for any default or delay in the performance of its obligations under this Agreement if and to the extent such default or delay is caused, directly or indirectly, by fire, flood, earthquake, elements of nature or acts of God; wars, terrorist acts, site-specific terrorist threats, riots, civil disorders, rebellions or revolutions; strikes, lockouts or labor disputes; or any other cause beyond the reasonable control of such Party; except to the extent that the non-performing Party is at fault in failing to prevent or causing such default or delay, and provided that such default or delay can not reasonably be circumvented by the non-performing Party through the use of alternate sources, workaround plans or other means. A strike, lockout or labor dispute by Supplier Personnel shall not excuse Supplier from its obligations hereunder. In addition, the refusal of Supplier Personnel to enter a facility that is the subject of a labor dispute shall excuse Supplier from its obligations hereunder only if and to the extent such refusal is based upon a clear and present danger of physical harm.

(b)

Duration and Notification. In the event of a force majeure event, the non-performing Party shall be excused from further performance or observance of the obligation(s) so affected for as long as such circumstances prevail and such Party continues to use all commercially reasonable efforts to recommence performance or observance whenever and to whatever extent possible without delay. Any Party so prevented, hindered or delayed in its performance shall, as quickly as practicable under the circumstances, notify the Party to whom performance is due by telephone (to be confirmed in writing within one (1) day of the inception of such delay) and describe at a reasonable level of detail the circumstances of the force majeure event, the steps being taken to address such force majeure event, and the expected duration of such force majeure event.

(c)

Substitute Services; Termination. If any event described in Section 18.2(a) has substantially prevented, hindered or delayed or is reasonably expected to substantially prevent, hinder or delay the performance by Supplier or one of its Subcontractors of Services necessary for the performance of critical Hercules or Eligible Recipient functions for longer than the recovery period specified in the applicable disaster recovery plan, or if there is no such recovery period, seventy two (72) hours, Supplier shall, unless and until otherwise directed by Hercules, use commercially reasonable efforts to procure such Services from an alternate source, at Supplier’s expense for so long as the delay in performance shall continue, up to the Charges actually paid to Supplier for the Services with respect to the period of non-performance. If Supplier is unable to procure such substitute services on an expedited basis or Hercules elects to contract directly for such services, Hercules may procure such Services from an alternate source at Hercules' expense. In addition, if any event described in Section 18.2(a) substantially prevents, hinders or delays the performance by Supplier or one of its Subcontractors of Services necessary for the performance of critical Hercules functions (i) for more than five (5) days, Hercules, at its option, may terminate any portion of this Agreement so affected without payment of Termination Charges and the charges payable hereunder shall be equitably adjusted to reflect those terminated Services; or (ii) for more than ten (10) days, Hercules, at its option, may terminate this Agreement in whole or part without payment of Termination Charges (provided that, in each case, Hercules shall confer in good faith with Supplier prior to exercising such termination right). Supplier shall not have the right to additional payments or increased usage charges as a result of any force majeure occurrence affecting Supplier’s ability to perform.

(d)

Disaster Recovery / Business Continuity. Upon the occurrence of a force majeure event that constitutes a disaster under the applicable disaster recovery/business continuity plan, Supplier shall implement promptly, as appropriate, such disaster recovery/business continuity plan and provide disaster recovery and business continuity services as described in such plan and in Schedule E. The occurrence of a force majeure event shall not relieve Supplier of its obligation to implement the applicable disaster recovery/business continuity plan and provide disaster recovery and business continuity services, unless and to the extent such force majeure event prevents Supplier from implementing such plan or providing such services.

(e)

Payment Obligation. If Supplier fails to provide Services in accordance with this Agreement due to the occurrence of a force majeure event, all amounts payable to Supplier hereunder shall be equitably adjusted in a manner such that Hercules is not required to pay any amounts for Services that it is not receiving whether from Supplier or from an alternate source at Supplier’s expense pursuant to Section 18.2(c) (provided that, if Supplier is ready and able to provide the Services and a force majeure event prevents Hercules from receiving such Services for more than twenty (20) days, the Parties shall confer in good faith and agree upon staffing, charges and other matters going forward and the Charges and other contract obligations will be adjusted accordingly).

(f)

Allocation of Resources. Without limiting Supplier’s obligations under this Agreement, whenever a force majeure event or disaster causes Supplier to allocate limited resources between or among Supplier’s customers and Affiliates, Hercules and the Eligible Recipients shall receive at least the same treatment as comparable Supplier customers. In no event will Supplier re-deploy or re-assign any Key Supplier Personnel to another customer or account in the event of the occurrence of a force majeure event.

18.3 Limitation of Liability.

(a)

Exclusions from Limitations. EXCEPT AS PROVIDED IN THIS SECTION 18.3, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR INDIRECT, CONSEQUENTIAL, INCIDENTAL, COLLATERAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS, REGARDLESS OF THE FORM OF THE ACTION OR THE THEORY OF RECOVERY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

(b)

Liability Cap. Additionally, except as provided below, the total aggregate liability of either Party, for claims asserted by the other Party under or in connection with this Agreement, regardless of the form of the action or the theory of recovery, shall be limited to the total Charges payable to Supplier during the twelve (12) month period preceding the last act or omission giving rise to such liability; provided that, for the period beginning on the Effective Date and ending on the last day of the first Contract Year, the total aggregate

liability of either Party shall be limited to the greater of $7,000,000 or the total actual Charges payable to Supplier for the preceding twelve (12) months. For avoidance of doubt, this liability cap is an aggregate liability cap for the Master Agreement and all Companion Agreements.

(c)

Exceptions to Limitations of Liability. The limitations of liability set forth in Sections 18.3(a) and (b) shall not apply with respect to:

(i)

Losses occasioned by the fraud, willful misconduct, or gross negligence of a Party.

(ii)

Losses that are the subject of indemnification under this Agreement (provided that a Party’s liability for indemnification under Sections 17.1(a), (b) and (c) and 17.2(a). (b) and (c) shall be limited to an amount equal to the liability cap specified in Section 18.3(b), and a Party's liability for indemnification under Sections 17.1(d) and 17.2(d) shall be limited to an expanded liability cap equal to two times the liability cap specified in Section 18.3(b).

(iii)

Losses occasioned by Supplier’s refusal to provide Services or Termination Assistance Services (for purposes of this provision, “refusal” shall mean the intentional cessation by Supplier, in a manner impermissible under this Agreement, of the performance of all or a material portion of the Services or Termination Assistance Services then required to be provided by Supplier under this Agreement).

(iv)

Amounts paid under Section 17.3 with respect to death or bodily injury of an agent, employee, customer, business invitee, business visitor or other person or damage, loss or destruction of real or tangible personal property.

(v)

Losses occasioned by any breach of a Party’s obligations under Article 13 (excluding Losses attributable to non-Party claims, which are addressed in Sections 17.1(d) and 17.2(d))

(d)

Items Not Considered Damages. The following shall not be considered damages subject to, and shall not be counted toward the liability exclusion or cap specified in, Section 18.3(a) or (b):

(i)

Service Level Credits or Deliverable Credits assessed against Supplier pursuant to Schedule G.

(ii)

Amounts withheld by Hercules in accordance with this Agreement due either to incorrect Charges by Supplier or non-conforming Services.

(iii)

Amounts paid by Hercules but subsequently recovered from Supplier due either to incorrect Charges by Supplier or non-conforming Services.

(iv)

Invoiced Charges and other amounts that are due and owing to Supplier for Services under this Agreement.

(e)

Waiver of Liability Cap. If, at any time, the total aggregate liability of one Party for claims asserted by the other Party under or in connection with this Agreement exceeds eighty percent (80%) of the liability cap specified in Section 18.3(a) and, upon the request of the other Party, the Party incurring such liability refuses to waive such cap and/or increase the available cap to an amount equal to equal to at least fifty percent (50%) of the original liability cap, then the other Party may terminate this Agreement without payment of Termination Charges.

(f)

Acknowledged Direct Damages. The following shall be considered direct damages and neither Party shall assert that they are indirect, incidental, collateral, consequential or special damages or lost profits to the extent they result from either Party’s failure to perform in accordance with this Agreement:

(i)

Costs and expenses of recreating or reloading any lost, stolen or damaged Hercules Data.

(ii)

Costs and expenses of implementing a work-around in respect of a failure to provide the Services or any part thereof.

(iii)

Costs and expenses of replacing lost, stolen or damaged Equipment, Software, and Materials.

(iv)

Cover damages, including the costs and expenses incurred to procure the Services or corrected Services from an alternate source, to the extent in excess of Supplier’s Charges under this Agreement.

(v)

Straight time, overtime or related expenses incurred by either Party, including overhead allocations for employees, wages and salaries of additional employees, travel expenses, overtime expenses, telecommunication charges and similar charges.

(vi)

Costs and expenses incurred to bring the Services in-house or to contract to obtain the Services from an alternate source, including the costs and expenses associated with the retention of external consultants and legal counsel to assist with any re-sourcing.

(vii)

Damages of a Hercules Affiliate or an Eligible Recipient which would be direct damages if they had instead been suffered by Hercules (including being so considered under this Section 18.3(f)).

(viii)

Payments, fines, penalties, interest, sanctions, or other remedies imposed by a governmental body or regulatory agency or required by an applicable Law for failure to comply with legal requirements or deadlines.

(ix)

Damages, fines, penalties, interest or other monetary remedies awarded to non-government claimants by a court or in final settlement of a claim for failure to comply with applicable Laws.

(x)

Service Level Credits or Deliverable Credits assessed against Supplier pursuant to Schedules G, H or H.1 or other agreement of the Parties.

(xi)

Lost funds (including interest on such lost funds) resulting from Supplier’s failure to make payments in accordance with the instructions of Hercules, the Eligible Recipients or the applicable Authorized Users or in compliance with applicable Laws.

(xii)

Lost funds (including interest on such lost funds) resulting from Supplier’s extension of credit in violation of the policy or instructions of Hercules and/or the Eligible Recipients.

(xiii)

Lost funds (including interest on such lost funds) resulting from Supplier’s failure to provide correct instructions for funds transfers, or failure to properly execute funds transfers.

(xiv)

Lost discounts, late fees and/or interest charges incurred by Hercules and the Eligible Recipients.

19 DISPUTE RESOLUTION

19.1 Informal Dispute Resolution.

Prior to the initiation of formal dispute resolution procedures with respect to any dispute, other than as provided in Section 19.1(d) and (e), the Parties shall first attempt to resolve such dispute informally, as follows:

(a)

Initial Effort. The Parties agree that the Hercules Relationship Manager and the Supplier Account Manager shall attempt in good faith to resolve all disputes (other than those described in Section 19.1(d)). The Parties also agree that to the extent provided in Schedule S or the Policy and Procedures Manual, the Executive Steering Committee shall attempt in good faith to resolve disputes (other than those described in Section 19.1(d)) between the Parties. In the event a dispute cannot be resolved in accordance with the foregoing in an amount of time that either Party deems reasonable under the circumstances, such Party may refer the dispute for resolution to the senior corporate executives specified in Section 19.1(b) below upon written notice to the other Party.

(b)

Escalation. Within five (5) business days of a notice under Section 19.1(a) above referring a dispute for resolution by senior corporate executives, the Hercules Relationship Manager and the Supplier Account Manager will each prepare and provide to the Supplier Vice president - Global Sales and Marketing and the Hercules General Counsel, respectively, summaries of the non-privileged relevant information and background of the dispute, along with any appropriate non-privileged supporting documentation, for their review. The designated senior corporate executives will confer as often as they deem reasonably necessary in order to gather and furnish to the other all non-privileged information with respect to the matter in issue which the Parties believe to be appropriate and germane in connection with its resolution. The designated senior corporate executives shall discuss the problem and negotiate in good faith in an effort to resolve the dispute without the necessity of any formal proceeding. The specific format for the discussions will be left to the discretion of the designated senior corporate executives, but may include the preparation of agreed-upon statements of fact or written statements of position.

(c)

Provision of Information. During the course of negotiations under Section 19.1(a) or (b) above, all reasonable requests made by one Party to another for non-privileged information, reasonably related to the dispute, will be honored in order that each of the parties may be fully advised of the other’s position. All negotiation shall be strictly confidential and used solely for the purposes of settlement. Any materials prepared by one Party for these proceedings shall not be used as evidence by the other Party in any subsequent arbitration or litigation; provided, however, the underlying facts supporting such materials may be subject to discovery.

(d)

Prerequisite to Formal Proceedings. Formal proceedings for the resolution of a dispute may not be commenced until the earlier of:

(i)

the designated senior corporate executives under Section 19.1(b) above concluding in good faith that amicable resolution through continued negotiation of the matter does not appear likely; or

(ii)

thirty (30) days after the notice under Section 19.1(a) above referring the dispute to senior corporate executives.

(e)

Equitable Remedies. The provisions and time periods specified in this Section 19.1 shall not be construed to prevent a Party from instituting, and a Party is authorized to institute, formal proceedings earlier to (A) avoid the expiration of any applicable limitations period, (B) preserve a superior position with respect to other creditors, (C) address a claim arising out of the breach of a Party’s obligations under Article 13, or (D) address a claim arising out of the breach or attempted or threatened breach of the obligations described in the next paragraph.

Supplier acknowledges that, in the event it breaches (or attempts or threatens to breach) (i) its obligation to provide Services or Termination Assistance Services in accordance with this Agreement, its obligation respecting continued performance in accordance with Section 19.4, (ii) its obligations with respect to Hercules Confidential Information, Hercules Data and/or Hercules intellectual property rights in accordance with Articles 13 and 14, or (iii) its obligation to provide access to Hercules Data in accordance with Section 13.4, Hercules and/or the Eligible Recipients will be irreparably harmed. In such a circumstance, Hercules may proceed directly to court.

19.2 Arbitration.

(a)

Arbitration. Except for claims arising out of the breach of a Party’s obligations under Article 13 or disputes subject to Sections 19.1(e), any controversy or claim arising out of or relating to this Agreement, or any breach thereof, which cannot be resolved using the procedures set forth above in Section 19.1 shall be finally resolved by binding arbitration under the Commercial Arbitration Rules of the American Arbitration Association then in effect; provided, however, that without limiting any rights at law or in equity a Party may have because of an improper termination of this Agreement by the other Party, nothing contained in this Agreement shall limit either Party’s right to terminate this Agreement pursuant to Article 20.

(b)

Location and Decision. The Arbitration shall take place in Wilmington, Delaware, and shall apply the governing law of this Agreement. The decision of the arbitrators shall be final and binding and judgment on the award may be entered in any court of competent jurisdiction, notwithstanding the exclusive jurisdiction requirement in Section 19.3. The arbitrators shall be instructed to state the reasons for their decisions, including findings of fact and law. The language of the arbitration will be English. The arbitrators shall be bound by the warranties, limitations of liability and other provisions of this Agreement. Except with respect to the provisions of this Agreement which provide for injunctive relief rights, such arbitration shall be a precondition to any application by either Party to any court of competent jurisdiction.

(c)

Selection and Qualification of Arbitrators. Within ten (10) days after delivery of written notice (“Notice of Dispute”) by one Party to the other in accordance with this Section, the Parties each shall use good faith efforts to mutually agree upon one (1) arbitrator. If the Parties are not able to agree upon one (1) arbitrator within such period of time, the Parties each shall within ten (10) days: (i) appoint one (1) arbitrator who has at no time ever represented or acted on behalf of either of the Parties, and is not otherwise affiliated with or interested in either of the Parties and (ii) deliver written notice of the identity of such arbitrator and a copy of his or her written acceptance of such appointment to the other Party. If either Party fails or refuses to appoint an arbitrator within such ten (10) day period, the single arbitrator appointed by the other Party shall decide alone the issues set out in the Notice of Dispute. Within ten (10) days after such appointment and notice, such arbitrators shall appoint a third neutral and independent arbitrator who at no time ever represented or acted on behalf of either of the Parties, and is not otherwise affiliated with or interested in either of the Parties. In the event that the two (2) arbitrators fail to appoint a third arbitrator within ten (10) days of the appointment of the second arbitrator, either arbitrator or either Party may apply for the appointment of a third arbitrator to the American Arbitration Association.

(d)

General. All arbitrators selected pursuant to this Section shall possess at least five (5) years of relevant experience in technology, finance and/or law applicable to the Services or similar services or transactions. Any such appointment shall be binding upon the Parties. The Parties shall use best efforts to set the arbitration within sixty (60) days after selection of the arbitrator or arbitrators, as applicable, but in no event shall the arbitration be set more than ninety (90) days after selection of the arbitrator or arbitrators, as applicable. Discovery as permitted by the Federal Rules of Civil Procedure then in effect will be allowed in connection with arbitration to the extent consistent with the purpose of the arbitration and as allowed by the arbitrator or arbitrators, as applicable. The decision or award of the arbitrator or the majority of the three arbitrators, as applicable, shall be rendered within fifteen (15) days after the conclusion of the hearing, shall be in writing, shall set forth the basis therefore, and shall be final, binding and non-appealable upon the Parties. Notwithstanding the exclusive jurisdiction requirement in Section 19.3, the decision or award of the arbitrator or the majority of the three arbitrators, as applicable, may be enforced and executed upon in any court or other body having jurisdiction over the Party against whom the enforcement of such decision or award is sought. Each Party shall bear its own arbitration costs and expenses and all other costs and expenses of the arbitration shall be divided equally between the Parties; provided, however, the arbitrator or arbitrators, as applicable, may modify the allocation of fees, costs and expenses in the award in those cases where fairness dictates other than such allocation between the Parties.

19.3 Jurisdiction.

Subject to Section 19.2, each Party irrevocably agrees that any legal action, suit or proceeding brought by it in any way arising out of this Agreement must be brought solely and exclusively in Wilmington, Delaware, and each Party irrevocably submits to the sole and exclusive jurisdiction of the courts in Delaware in personam, generally and unconditionally with respect to any action, suit or proceeding brought by it or against it by the other Party. Notwithstanding the foregoing, Hercules may seek injunctive or other equitable relief or seek to enforce a judgment in any court of competent jurisdiction.

19.4 Continued Performance.

(a)

General. Each Party agrees that it shall, unless otherwise directed by the other Party, continue performing its obligations under this Agreement while any dispute is being resolved; provided, that this provision shall not operate or be construed as extending the Term of this Agreement or prohibiting or delaying a Party’s

exercise of any right it may have to terminate the Term as to all or any part of the Services. For purposes of clarification, Hercules Data may not be withheld by Supplier pending the resolution of any dispute.

(b)

Non-Interruption of Service. Supplier acknowledges and agrees that any interruption to the Service will cause irreparable harm to Hercules and/or the Eligible Recipients, in which case an adequate remedy at law would not be available. Supplier expressly acknowledges and agrees that, pending resolution of any dispute or controversy, it shall not deny, withdraw, or restrict Supplier’s provision of the Services to Hercules and/or the Eligible Recipients under this Agreement, except as specifically and expressly agreed in writing by Hercules and Supplier.

19.5 Governing Law.

This Agreement and performance under it shall be governed by and construed in accordance with the applicable laws of the State of Delaware, without giving effect to the principles thereof relating to conflicts of laws. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.

20 TERMINATION

20.1 Termination for Cause.

(a)

By Hercules. If Supplier:

(i)

commits a material breach of its obligations with respect to Transition Services as provided in Section 4.2(f), which breach is not cured within the period specified in Section 4.2(f);

(ii)

commits a material breach of this Agreement, which breach is not cured within thirty (30) days after notice of the breach from Hercules;

(iii)

commits a material breach of this Agreement which is not capable of being cured within the period specified pursuant to Section 20.1(a)(ii);

(iv)

commits numerous breaches of its duties or obligations which collectively constitute a material breach of this Agreement;

(v)

becomes liable for or incurs Service Level Credits under this Agreement that, in the aggregate, exceed fifty percent (50%) of the cumulative At Risk Amount during any rolling six (6) month period; or

(vi)

fails to perform in accordance with the Minimum Service Level for same Critical Service Level for three (3) consecutive months or during four (4) of any six (6) consecutive month period;

then Hercules may, by giving notice to Supplier, terminate the Term with respect to all or any part of the Services, in whole or in part, as of a date specified in the notice of termination. Supplier shall not be entitled to any Termination Charges in connection with such a termination for cause. If Hercules chooses to terminate this Agreement in part, the Charges payable under this Agreement will be adjusted in accordance with the pricing by charge component, as set forth in Schedule J, to reflect such partial termination. For avoidance of doubt, the Parties acknowledge and agree that a material breach under this Master Agreement or any Companion Agreement shall be deemed a material breach under this Master Agreement and all Companion Agreements for purposes of this provision.

The express acknowledgment that a certain amount of Service Level Credits or number of Service Level defaults constitutes grounds for termination under Section 20.1(a)(v) and (vi) does not imply that a lesser amount or number cannot constitute a material breach of this Agreement and therefore grounds for termination under other subsections, and no Party shall contend otherwise in any dispute or controversy between the Parties.

(b)

By Supplier. In the event that Hercules fails to pay Supplier undisputed Charges exceeding in the aggregate two (2) months of Monthly Base Charges by the specified due date and fails to cure such default within thirty (30) days of notice from Supplier of its intention to terminate for failure to make such payment, Supplier may, by notice to Hercules, terminate the Term. Supplier acknowledges and agrees that this Section 20.1(b) describes Supplier’s sole right to terminate this Agreement and Supplier hereby waives any other rights it may have to terminate this Agreement.

20.2 Termination for Convenience.

Hercules may terminate the Term with respect to all Services or any Functional Service Area(s) for convenience and without cause at any time. If Hercules elects to terminate all Services provided under this Master Agreement and all Companion Agreements on this basis, Hercules shall give Supplier at least six (6) months prior notice designating the termination date. If Hercules elects to terminate less than all Functional Service Areas and/or less than all Companion Agreements, Hercules shall give Supplier at least ninety (90) days prior notice designating the termination date. In either event, Hercules shall pay to Supplier a Termination Charge calculated in accordance with Schedule N. In the event that a purported termination for cause by Hercules under Section 20.1 is determined by a competent authority not to be properly a termination for cause, then such termination by Hercules shall be deemed to be a termination for convenience under this Section 20.2.

20.3 Termination Upon Supplier Change of Control.

In the event of a change in Control of Supplier (or that portion of Supplier providing all or any material of the Services under this Agreement) or the Entity that Controls Supplier (if any), where such control is acquired, directly or indirectly, in a single transaction or series of related transactions, or all or substantially all of the assets of Supplier (or that portion of Supplier providing all or any material of the Services under this Agreement) are acquired by any entity, or Supplier (or that portion of Supplier providing all or any material of the Services under this Agreement) is merged with or into another entity to form a new entity, then at any time within twelve (12) months after the last to occur of such events, Hercules may at its option terminate the Term by giving Supplier at least ninety (90) days prior notice and designating a date upon which such termination shall be effective; provided, however, if such change in Control of Supplier involves a Direct Hercules Competitor, Hercules may terminate the Term by giving Supplier at least thirty (30) days prior notice, and such Direct Hercules Competitor shall be prohibited from any contact with Hercules Data, Hercules Confidential Information and any and all other information about the Hercules account, including discussions with Supplier Personnel regarding specifics relating to the Services. Supplier shall not be entitled to any Termination Charges in connection with a termination on this basis. For avoidance of doubt, an initial public offering or secondary offering by Supplier shall not be deemed to be a Change of Control of Supplier and shall not trigger the right to terminate for convenience pursuant to this Section 20.3.

20.4 Termination Upon Hercules Acquisition or Merger.

In the event that, in a single transaction or series of transactions, Hercules acquires or is acquired by any other Entity (by stock sale, asset sale or otherwise) or merges with any other Entity, then, at any time within twelve (12) months after the last to occur of such events, Hercules may at its option terminate the Term by giving Supplier at least one hundred eighty (180) days prior notice and designating a date upon which such termination shall be effective. If Hercules elects to terminate on this basis, Hercules shall pay a Termination Charge equal to the greater of (i) seventy-five percent (75%) of the Termination Charge it would have been obligated to pay under Schedule N if it had terminated for convenience under Section 20.2, or (ii) an amount equal to the wind-down expenses (as defined in Section 2(a) or (b) of Schedule N and unamortized balance sheet items (as defined in Section 2(c) of Schedule N reasonably incurred by Supplier.

20.5 Termination for Insolvency.

In the event that any Party (i) files for bankruptcy, (ii) becomes or is declared insolvent, or is the subject of any bona fide proceedings related to its liquidation, administration, provisional liquidation, insolvency or the appointment of a receiver or similar officer for it, (iii) passes a resolution for its voluntary liquidation, (iv) has a receiver or manager

appointed over all or substantially all of its assets, (v) makes an assignment for the benefit of all or substantially all of its creditors, (vi) enters into an agreement or arrangement for the composition, extension, or readjustment of substantially all of its obligations or any class of such obligations, (vii) fails or become incapable of paying its debts as they become due or is otherwise in default under material contracts and fails to promptly cure such defaults, or (vii) experiences an event analogous to any of the foregoing in any jurisdiction in which any of its assets are situated, then the other Party may terminate this Agreement as of a date specified in a termination notice; provided, however, that Supplier will not have the right to exercise such termination under this Section so long as Hercules pays for the Services to be received hereunder in advance on a month-to-month basis. If any Party elects to terminate this Agreement due to the insolvency of the other Party, such termination will be deemed to be a termination for cause hereunder.

20.6 Hercules Rights Upon Supplier’s Bankruptcy.

(a)

General Rights. In the event of Supplier’s bankruptcy or other formal procedure referenced in Section 20.5 or of the filing of any petition under bankruptcy laws affecting the rights of Supplier which is not stayed or dismissed within thirty (30) days of filing, in addition to the other rights and remedies set forth herein, to the maximum extent permitted by Law, Hercules will have the immediate right to retain and take possession for safekeeping all Hercules Data, Hercules Confidential Information, Hercules licensed Third Party Software, Hercules owned Equipment, Hercules owned Materials, Hercules owned Developed Materials, and all other Software, Equipment, Systems or Materials to which Hercules and/or the Eligible Recipients are or would be entitled during the Term or upon the expiration or termination of this Agreement. Supplier shall cooperate fully with Hercules and the Eligible Recipients and assist Hercules and the Eligible Recipients in identifying and taking possession of the items listed in the preceding sentence. Hercules will have the right to hold such Hercules Data, Confidential Information, Software, Equipment, Systems and Materials until such time as the trustee or receiver in bankruptcy or other appropriate insolvency office holder can provide adequate assurances and evidence to Hercules that they will be protected from sale, release, inspection, publication, or inclusion in any publicly accessible record, document, material or filing. Supplier and Hercules agree that without this material provision, Hercules would not have entered into this Agreement or provided any right to the possession or use of Hercules Data, Hercules Confidential Information, or Hercules Software covered by this Agreement.

(b)

Hercules Rights in Event of Bankruptcy Rejection. Notwithstanding any other provision of this Agreement to the contrary, in the event that Supplier becomes a debtor under the United States Bankruptcy Code (11 U.S.C. §101 et. seq. or any similar Law in any other country (the “Bankruptcy Code”)) and rejects this Agreement pursuant to Section 365 of the Bankruptcy Code (a “Bankruptcy Rejection”), (i) any and all of the licensee and sublicensee rights of Hercules and the Eligible Recipients arising under or otherwise set forth in this Agreement, including without limitation the rights of Hercules and/or the Eligible Recipients referred to in Section 14.6, shall be deemed fully retained by and vested in Hercules and/or the Eligible Recipients as protected intellectual property rights under Section 365(n)(1)(B) of the Bankruptcy Code and further shall be deemed to exist immediately before the commencement of the bankruptcy case in which Supplier is the debtor; (ii) Hercules shall have all of the rights afforded to non-debtor licensees and sublicensees under Section 365(n) of the Bankruptcy Code; and (iii) to the extent any rights of Hercules and/or the Eligible Recipients under this Agreement which arise after the termination or expiration of this Agreement are determined by a bankruptcy court not to be “intellectual property rights” for purposes of Section 365(n), all of such rights shall remain vested in and fully retained by Hercules and/or the Eligible Recipients after any Bankruptcy Rejection as though this Agreement were terminated or expired. Hercules shall under no circumstances be required to terminate this Agreement after a Bankruptcy Rejection in order to enjoy or acquire any of its rights under this Agreement, including without limitation any of the rights of Hercules referenced in Section 14.6.

20.7 Termination for Supplier Degraded Financial Condition.

If Supplier has a reduction in its long term credit rating as determined by Moody’s Investors Service to "Ba" or below, then Hercules may, in its sole discretion, terminate this Agreement without payment of Termination Charges by giving Supplier at least ninety (90) days prior notice.

21	GENERAL

21.1 Binding Nature, Assignment.

(a)

Binding Nature. This Agreement will be binding on the Parties and their respective successors and permitted assigns.

(b)

Assignment. Neither Party may, or will have the power to, assign this Agreement without the prior written consent of the other, except in the following circumstances:

(i)

Hercules may assign its rights or obligations under this Agreement, without approval of Supplier, to an Affiliate which expressly assumes Hercules' obligations and responsibilities hereunder, provided Hercules remains fully liable for and is not relieved from the full performance of its obligations under this Agreement; and

(ii)

Hercules may assign its rights and obligations under this Agreement without the approval of Supplier to an Entity acquiring, directly or indirectly, Control of Hercules, an Entity into which Hercules is merged, or an Entity acquiring all or substantially all of Hercules' assets, provided the acquirer or surviving Entity agrees in writing to be bound by the terms and conditions of this Agreement (provided that, if the Entity by which Hercules is acquired or into which Hercules is merged is a Direct Supplier Competitor, the Parties shall confer in good faith regarding Supplier's competitive concerns and possible means of addressing such concerns, including the possibility of unwinding the relationship).

(c)

Impermissible Assignment. Any attempted assignment that does not comply with the terms of this Section shall be null and void.

21.2 Entire Agreement; Amendment.

This Agreement, including any Schedules and Exhibits referred to herein and attached hereto, each of which is incorporated herein for all purposes, constitutes the entire agreement between the Parties with respect to the subject matter hereof. There are no agreements, representations, warranties, promises, covenants, commitments or undertakings other than those expressly set forth herein. This Agreement supersedes all prior agreements, representations, warranties, promises, covenants, commitments or undertaking, whether written or oral, with respect to the subject matter contained in this Agreement. No amendment, modification, change, waiver, or discharge hereof shall be valid unless in writing and signed by an authorized representative of the Party against which such amendment, modification, change, waiver, or discharge is sought to be enforced.

21.3 Notices.

(a)

Primary Notices. Any notice, notification, request, demand or determination provided by a Party pursuant to the following:

Section 4.3 (Termination Assistance Services);

Section 4.6(a) (Use of Third Parties - Right of Use);

Section 6.7 (Notice of Defaults);

Section 7.7 (Notice of Adverse Impact);

Section 11.5 (Extraordinary Events);

Section 13.1(d) (Loss of Confidential Information);

Section 16.1(d)(Cancellation, Expiration or Alteration of Insurance);

Sections 17.5 (Indemnification Procedures);

Section 17.6 (Indemnification Procedures - Government Claims);

Section 18.2 (Force Majeure);

Section 18.3(e) (Waiver of Liability Cap);

Section 19.1 (Informal Dispute Resolution);

Article 20 (Termination); and

Section 21.1 (Binding Nature, Assignment);

shall be in writing and shall be delivered in hard copy using one of the following methods and shall be deemed delivered upon receipt: (i) by hand, (ii) by an express courier with a reliable system for tracking delivery, or (iii) by registered or certified mail, return receipt requested, postage prepaid. Unless otherwise notified, the foregoing notices shall be delivered as follows:

In the case of Hercules:

Hercules Incorporated

1313 North Market Street

Wilmington, DE 19894-0001

Attention: Chief Financial Officer

With a copy to:

Hercules Incorporated

1313 North Market Street

Wilmington, DE 19894-0001

Attention: General Counsel

and

In the case of Supplier:

Genpact International

Duna Plaza Offices, 4^th Floor

H-1138 Budapest Vaci út 178

Hungary

Attention: Board of Managers

Facsimile: +361-330-8910

With a copy to:

Genpact International

DLF City-Phase V

Sector 53, Gurgaon - 122002

Haryana State, India

Attention: General Counsel

Facsimile: +91 124 402 2205

(b)

Other Notices. All notices, notifications, requests, demands or determinations required or provided pursuant to this Agreement, other than those specified in Section 21.3(a), may be sent in hard copy in the manner specified in Section 21.3(a), or by e-mail transmission (where receipt is acknowledged by the recipient) or facsimile transmission (with acknowledgment of receipt from the recipient’s facsimile machine) to the addresses set forth below:

In the case of Hercules:

Hercules Incorporated

1313 North Market Street

Wilmington, DE 19894-0001

Attention: Stephen F. Werbe

E-mail Address: swerbe@herc.com

Facsimile: 302-594-7200

and

In the case of Supplier:

Genpact International

DLF IT Park

Tower 1, 7th Floor

8 Major Arterial Road

New Town, Rajarhat

Kolkata 700156

Attention: Subrata Mukherjee - Hercules Global Operating Leader

E-mail Address: Subrata.Mukherjee@genpact.com

Facsimile: +91 33 2324 2004

(c)

Service of Process. Notwithstanding the above, for the purpose of service of legal process and receipt of notice or pleadings in judicial proceedings before the federal or state courts of Delaware, as selected by the Parties under Section 19.2 of the Agreement, both Parties to this Agreement and all parties to all Companion Agreements irrevocably appoint the company below as their agent for service of process and receipt of such notice or notification, and further elect domicile at the address of said company in Delaware, as follows:

In the case of Hercules:

Hercules Incorporated

1313 North Market Street

Wilmington, DE 19894-0001

Attention: General Counsel

With a copy to:

Hercules Incorporated

1313 North Market Street

Wilmington, DE 19894-0001

Attention: Chief Financial Officer

and

In the case of Supplier:

Genpact International

c/o National Corporate Research, Ltd.

615 South DuPont Highway

Dover, DE19901

With a copy to:

Genpact International

DLF City-Phase V

Sector 53, Gurgaon - 122002

Haryana State, India

Attention: General Counsel

Facsimile: +91 124 402 2205

(d)

Notice of Change. A Party may from time to time change its address or designee for notification purposes by giving the other prior notice of the new address or designee and the date upon which it shall become effective.

21.4 Counterparts.

This Agreement may be executed in several counterparts, all of which taken together shall constitute one single agreement between the Parties hereto.

21.5 Headings.

The article and section headings and the table of contents used herein are for reference and convenience only and shall not be considered in the interpretation of this Agreement.

21.6 Relationship of Parties.

Supplier, in furnishing services to Hercules and the Eligible Recipients hereunder, is acting as an independent contractor, and Supplier has the sole obligation to supervise, manage, contract, direct, procure, perform or cause to be performed, all work to be performed by Supplier under this Agreement. The relationship of the Parties under this Agreement shall not constitute a partnership or joint venture for any purpose. Except as expressly provided in this Agreement, Supplier is not an agent of Hercules or the Eligible Recipients and has no right, power or authority, expressly or impliedly, to represent or bind Hercules or the Eligible Recipients as to any matters, except as expressly authorized in this Agreement.

21.7 Severability.

In the event that any provision of this Agreement conflicts with the law under which this Agreement is to be construed or if any such provision is held invalid or unenforceable by a court with jurisdiction over the Parties, such provision shall be deemed to be restated to reflect as nearly as possible the original intentions of the Parties in accordance with applicable law. The remaining provisions of this Agreement and the application of the challenged provision to persons or circumstances other than those as to which it is invalid or unenforceable shall not be affected thereby, and each such provision shall be valid and enforceable to the full extent permitted by law.

21.8 Consents and Approval.

Except where expressly provided as being in the sole discretion of a Party, where agreement, approval, acceptance, consent, confirmation, notice or similar action by either Party is required under this Agreement, such action shall not be unreasonably delayed or withheld. An approval or consent given by a Party under this Agreement shall not relieve the other Party from responsibility for complying with the requirements of this Agreement, nor shall it be construed as a waiver of any rights under this Agreement, except as and to the extent otherwise expressly provided in such approval or consent.

21.9 Waiver of Default; Cumulative Remedies.

(a)

Waiver of Default. A delay or omission by either Party hereto to exercise any right or power under this Agreement shall not be construed to be a waiver thereof. A waiver by either of the Parties hereto of any of the covenants to be performed by the other or any breach thereof shall not be construed to be a waiver of any succeeding breach thereof or of any other covenant herein contained. All waivers must be in writing and signed by the Party waiving its rights.

(b)

Cumulative Remedies. All remedies provided for in this Agreement shall be cumulative and in addition to and not in lieu of any other remedies available to either Party at law, in equity or otherwise. The election by a Party of any remedy provided for in this Agreement or otherwise available to such Party shall not preclude such Party from pursuing any other remedies available to such Party at law, in equity, by contract or otherwise.

21.10 Survival.

Any provision of this Agreement which contemplates performance or observance subsequent to any termination or expiration of this Agreement shall survive any termination or expiration of this Agreement and continue in full force

and effect. Additionally, all provisions of this Agreement will survive the expiration or termination of this Agreement to the fullest extent necessary to give the Parties the full benefit of the bargain expressed herein.

21.11 Publicity.

Neither Party shall use the other Party’s name or mark or refer to the other Party directly or indirectly in any media release, public announcement, or public disclosure relating to this Agreement, including in any promotional or marketing materials, customer lists or business presentations without the prior written consent of the other Party prior to each such use or release. Neither Party shall make any public statements about this Agreement, the Services or the relationship contemplated hereunder without the other Party’s prior approval.

21.12 Service Marks.

Each Party agrees that it shall not, without the other Party’s prior consent, use any of the names, service marks or trademarks of such Party or where relevant, the Eligible Recipients in any of its advertising or marketing materials.

21.13 Third Party Beneficiaries.

Except as expressly provided herein, this Agreement is entered into solely between, and may be enforced only by, Hercules and Supplier. This Agreement shall not be deemed to create any rights or causes of action in or on behalf of any third parties, including without limitation employees, suppliers and customers of a Party, or to create any obligations of a Party to any such third parties.

21.14 Covenant Against Pledging.

To the extent Supplier assigns, transfers, pledges, hypothecates or otherwise encumbers its rights to receive payments from Hercules under this Agreement, Supplier shall continue to be Hercules’ sole point of contact with respect to this Agreement, including with respect to payment. The person or Entity to which such rights are assigned, transferred, pledged, hypothecated or otherwise encumbered shall not be considered a third party beneficiary under this Agreement and shall not have any rights or causes of action against Hercules.

21.15 Order of Precedence.

In the event of a conflict, this Agreement shall take precedence over the Schedules attached hereto, and the Schedules shall take precedence over any attached Exhibits.

21.16 Hiring of Employees.

(a)

Solicitation and Hiring. During the Term and for a period of twelve (12) months thereafter, Supplier will not solicit for employment directly or indirectly, nor employ, any employees of Hercules or an Eligible Recipient or individual Hercules Third Party Contractors without the prior approval of Hercules. Except as expressly set forth in Section 4.3(b)(2) during the Term and for a period of twelve (12) months thereafter, Hercules will not solicit for employment directly or indirectly, nor employ, any employee of Supplier involved in the performance of Supplier’s obligations under this Agreement without the prior consent of Supplier. In each case, the prohibition on solicitation and hiring shall extend ninety (90) days after the termination of the employee’s employment. This provision shall not operate or be construed to prevent or limit any employee’s right to practice his or her profession or to utilize his or her skills for another employer or to restrict any employee’s freedom of movement or association.

(b)

Publications. Neither the publication of classified advertisements in newspapers, periodicals, Internet bulletin boards, or other publications of general availability or circulation nor the consideration and hiring of persons responding to such advertisements shall be deemed a breach of this Section 21.16, unless the advertisement and solicitation is undertaken as a means to circumvent or conceal a violation of this provision and/or the hiring party acts with knowledge of this hiring prohibition.

21.17 Further Assurances.

Each Party covenants and agrees that, subsequent to the execution and delivery of this Agreement and without any additional consideration, each Party shall execute and deliver any further legal instruments and perform any acts that are or may become necessary to effectuate the purposes of this Agreement.

21.18 Liens.

Supplier shall not file, or by its action or inaction permit, any liens to be filed on or against property or realty of Hercules or any Eligible Recipient. In the event that any such liens arise as a result of Supplier’s action or inaction, Supplier shall obtain a bond to fully satisfy such liens or otherwise remove such liens at its sole cost and expense within ten (10) business days.

21.19 Covenant of Good Faith.

Each Party agrees that, in its respective dealings with the other Party under or in connection with this Agreement, it shall act in good faith.

21.20 Acknowledgment.

The Parties each acknowledge that the terms and conditions of this Agreement have been the subject of active and complete negotiations, and that such terms and conditions should not be construed in favor of or against any Party by reason of the extent to which any Party or its professional advisors participated in the preparation of this Agreement.

21.21 References.

Unless otherwise directed by Hercules, beginning twelve (12) months after the Effective Date, Supplier shall use Hercules as a reference at least once during the first six (6) months and once during the last six (6) month of each calendar year for prospective Supplier customers interested in purchasing services that include the same or substantially similar services to the Services. In conjunction with the foregoing, the Hercules Relationship Manager (or equivalent level of Hercules management), shall serve as the contact point for such prospective Supplier customers and shall respond to all inquiries in a timely manner. Notwithstanding Section 13.3, Supplier acknowledges and agrees that the Hercules Relationship Manager (or equivalent level of Hercules management) may freely discuss all aspects of Supplier's performance and Hercules' satisfaction with such performance with prospective Supplier customers. Supplier shall provide such prospective Supplier customers with appropriate Hercules contact information. The identity of such prospective Supplier customers and all information related thereto shall be considered Supplier Confidential Information.

IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their respective duly authorized representatives as of the Effective Date.

Hercules Incorporated Genpact International SARL

By:	/s/ Craig A. Rogerson	By:	/s/ V. N. Tyagarajan
Title:	President & CEO	Title:	Executive Vice President
Date:	January 16, 2007	Date:	January 15, 2007

End of TOC - Do not delete this paragraph!

Introduction

1.1Performance and Management by Supplier1

1.2Definitions1

1.3Other Terms1

CONTRACT DOCUMENTS

2.1Associated Contract Documents2

TERM

3.1Initial Term3

3.2Extension3

SERVICES

4.1Overview3

4.2Transition Services4

4.3Termination Assistance Services6

4.4New Services11

4.5Billable Projects12

4.6Right to In-Source or Use Third Parties; Cooperation12

4.7Companion Agreements14

4.8Guaranty14

REQUIRED CONSENTS

5.1Supplier Responsibility.14

5.2Financial Responsibility15

5.3Contingent Arrangements15

5.4Termination15

FACILITIES, SOFTWARE, EQUIPMENT, CONTRACTS AND ASSETS ASSOCIATED WITH THE PROVISION OF SERVICES

6.1Service Facilities.15

6.2Hercules Facilities.16

6.3Supplier Facilities18

6.4Software, Equipment and Third Party Contracts18

6.5Notice of Defaults21

SERVICE LEVELS

7.1General21

7.2Service Level Credits; Deliverable Credits.22

7.3Problem Analysis22

7.4Continuous Improvement Reviews.22

7.5Measurement and Monitoring23

7.6Satisfaction Surveys.23

7.7Notice of Adverse Impact24

PROJECT PERSONNEL

8.1Key Supplier Personnel24

8.2Supplier Account Manager.25

8.3Supplier Personnel Are Not Hercules Employees25

8.4Replacement, Qualifications, and Retention of Supplier Personnel25

8.5Staffing Plan: Restrictions on Changes in Supplier Staffing/Facilities26

8.6Conduct of Supplier Personnel27

8.7Substance Abuse27

8.8EC Acquired Rights Directive27

SUPPLIER RESPONSIBILITIES

9.1Policy and Procedures Manual28

9.2Reports29

9.3Governance Model; Meetings30

9.4Quality Assurance and Internal Controls30

9.5Processes, Procedures, Architecture, Standards and Planning32

9.6Change Control33

9.7Software Currency.34

9.8Maintenance35

9.9Efficiency and Cost Effectiveness.36

9.10Malicious Code36

9.11Access to Specialized Supplier Skills and Resources36

9.12Audit Rights.37

9.13Subcontractors.40

9.14Technology and Business Process Evolution41

9.15Network Configuration Data43

Hercules Responsibilities

10.1Responsibilities43

10.2Savings Clause43

CHARGES

11.1General.44

11.2Pass-Through Expenses45

11.3Reserved46

11.4Taxes46

11.5Extraordinary Events48

11.6Reserved49

11.7Refundable Items49

11.8Hercules Benchmarking Reviews49

INVOICING AND PAYMENT

12.1Invoicing50

12.2Payment Due.51

12.3Reserved.51

12.4Disputed Charges51

Hercules DATA AND OTHER CONFIDENTIAL INFORMATION

13.1Confidential Information52

13.2Hercules Data55

13.3Personal Data56

13.4File Access.58

13.5Hercules Data -- Correction and Restoration58

13.6Survival59

OWNERSHIP OF MATERIALS

14.1Hercules Owned Materials59

14.2Developed Materials60

14.3Supplier Owned Materials61

14.4Other Materials62

14.5General Rights62

14.6Hercules Rights Upon Expiration or Termination of Agreement63

REPRESENTATIONS, WARRANTIES and covenants

15.1Work Standards66

15.2Software66

15.3Non-Infringement67

15.4Authorization67

15.5Inducements; Hercules Business Practices Policy68

15.6Disabling Code68

15.7Compliance with Laws.68

15.8Interoperability; Currency70

15.9Disclaimer71

INSURANCE AND RISK OF LOSS

16.1Insurance.71

16.2Risk of Loss.72

INDEMNITIES

17.1Indemnity by Supplier73

17.2Indemnity by Hercules74

17.3Additional Indemnities74

17.4Infringement75

17.5Indemnification Procedures75

17.6Indemnification Procedures - Governmental Claims76

17.7Subrogation76

LIABILITY

18.1General Intent76

18.2Force Majeure76

18.3Limitation of Liability78

DISPUTE RESOLUTION

19.1Informal Dispute Resolution80

19.2Arbitration81

19.3Jurisdiction82

19.4Continued Performance82

19.5Governing Law82

TERMINATION

20.1Termination for Cause82

20.2Termination for Convenience83

20.3Termination Upon Supplier Change of Control83

20.4Termination Upon Hercules Acquisition or Merger84

20.5Termination for Insolvency84

20.6Hercules Rights Upon Supplier’s Bankruptcy84

20.7Termination for Supplier Degraded Financial Condition85

GENERAL

21.1Binding Nature, Assignment85

21.2Entire Agreement; Amendment86

21.3Notices86

21.4Counterparts88

21.5Headings88

21.6Relationship of Parties88

21.7Severability88

21.8Consents and Approval89

21.9Waiver of Default; Cumulative Remedies89

21.10Survival89

21.11Publicity89

21.12Service Marks89

21.13Third Party Beneficiaries89

21.14Covenant Against Pledging90

21.15Order of Precedence90

21.16Hiring of Employees90

21.17Further Assurances90

21.18Liens90

21.19Covenant of Good Faith90

21.20Acknowledgment91

21.21References91

Hercules

Schedule A

Glossary

Schedule A

Glossary

This is Schedule A to the Master Professional Services Agreement by and between Hercules and Supplier (the “Agreement”).

The following terms, when used in the Agreement or any Schedule or Attachment to the Agreement, shall have the meanings specified below.

(1)

“Acceptance” means the determination, in Hercules’ reasonable discretion, following implementation, installation, testing and execution in the production environment for a mutually agreed upon number of business cycles (of not less than one (1) cycle) that Software, Equipment, Systems and/or other contract deliverables are in Compliance in all material respects with the Specifications. Notwithstanding the foregoing, if (i) Hercules fails to provide Supplier notice of non-Acceptance within thirty (30) days following the completion of the agreed upon number of business cycles, (ii) Supplier notifies Hercules of such failure to provide written notice of non-Acceptance as described above, and (iii) Hercules thereafter fails to provide notice of non-Acceptance within five (5) days of such notice describing Hercules’ failure, then Acceptance shall be deemed to occur with respect to that Software, Equipment, Systems and/or other contract deliverables.

(2)

“Additional Resource Charge” or “ARC” is the charge per Resource Unit that is applicable whenever the actual consumption of a defined Resource Unit by Hercules and the Eligible Recipients exceeds the Resource Baseline for such Resource Unit set forth in Schedule J. The total additional charges will be calculated by multiplying the Additional Resource Charge by the number of Resource Units in excess of the Resource Baseline actually consumed by Hercules and the Eligible Recipients as further described in Schedule J.

(3)	“Affiliate” means with respect to any Entity, any other Entity that is directly or indirectly Controls, is Controlled by or under common Control with such Entity at the time in question.

(4)	“Agreement” has the meaning given in the preamble to the Agreement.

(5)	“Allocation of Pool Percentage” means the portion of the Pool Percentage Available for Allocation that is specified for a Performance Category. The total of all Allocation of Pool Percentages shall not exceed the Pool Percentage Available for Allocation.

(6)

“Applications Software” or “Applications” means those software application programs and programming (and all modifications, replacements, Upgrades, enhancements, documentation, materials and media related thereto) used to support day-to-day business operations and accomplish specific business objectives to the extent a Party has financial or operational responsibility for such programs or programming under Schedule E or Schedule J.1. Applications Software shall include all such programs or programming in use or required to be used as of the Commencement Date, including those set forth in Attachment E.9A to Schedule E and those as to which Supplier received reasonable notice and/or access prior to the Commencement Date. Applications Software also shall include all such programs or programming developed and/or introduced by or for Hercules or the Eligible Recipients on or after the Commencement Date to the extent a Party has financial or operational responsibility for such programs or programming under Schedule E or Schedule J.1.

(7)

“At Risk Amount” means, for any month during the Term, an amount, expressed as a percentage of the Monthly Base Charges, which is the maximum amount that the Supplier will have at risk for Service Level Credits. The At Risk Amount shall be the percentage of the Monthly Base Charges set forth in Schedule G (i.e., 10%).

(8)

“Authorized User(s)” means, individually and collectively, the employees, business units, contractors, subcontractors, customers, agents, representatives, and joint ventures of Hercules and the Eligible Recipients (other than Supplier and its Subcontractors) (i) mutually agreed upon by the Parties to receive or use the Systems or Services provided by Supplier, (ii) designated by Hercules or an Eligible Recipient to receive or use the Systems or Services provided by Supplier during the Transition Period, or (iii) that have master records in the applicable Systems or Applications (e.g., the SAP Application).

(9)	“Baseline Project FTEs” has the meaning given in Section 4.5(a) of the Agreement.

(10)	“Benchmark Standard” has the meaning given in Section 11.8(c) of the Agreement.

(11)	“Benchmarker” has the meaning given in Section 11.8(a) of the Agreement.

(12)	“Benchmarking” has the meaning given in Section 11.8(a) of the Agreement.

(13)	“BPO/ADM” has the meaning given in Section 1.1 of the Agreement.

(14)	“Charges” means the amounts set forth in Article 11 and Schedule J (or otherwise set forth in the Agreement) as charges due to the Supplier in return for providing the Services.

(15)	“Change Control Procedures” has the meaning given in Section 9.6(a) of the Agreement.

(16)	“Commencement Date” means April 1, 2007, or such other date as the Parties may agree upon in writing as the date on which Supplier shall assume full responsibility for the Services identified in the Agreement.

(17)

“Compliance” and “Comply” means, with respect to outsourced business process(es), Software, Equipment, Systems or other contract deliverables to be implemented, designed, developed, delivered, integrated, installed and/or tested by Supplier, in compliance in all material respects with the Specifications.

(18)	“Confidential Information” has the meaning given in Section 13.1(a) of the Agreement.

(19)	“Contract Changes” has the meaning given in Section 11.1(e) of the Agreement.

(20)

“Contract Year” means, for the first Contract Year, a period commencing on the Commencement Date and ending on December 31, 2006 and, for each ensuing Contract Year, a twelve (12) month period commencing on January 1 and ending on December 31. If any Contract Year is less than twelve (12) months, the rights and obligations under this Agreement that are calculated on a Contract Year basis will be proportionately adjusted for such shorter period.

(21)

“Control” and its derivatives means: (a) the legal, beneficial, or equitable ownership, directly or indirectly, of (i) at least forty-five percent (45%) of the aggregate of all voting equity interests in an Entity, or (ii) equity interests having the right to at least forty-five percent (45%) of the profits

of an Entity or, in the event of dissolution, to at least forty-five percent (45%) of the assets of an Entity; or (b) in the case of a partnership, the holding by an Entity (or one of its Affiliates) of the position of sole general partner.

(22)	“Critical Deliverables” means those deliverables performed on a one-time or periodic basis, for which a Deliverable Credit may be payable in accordance with Schedule G and described in Attachment G.1. Critical Deliverables are not Critical Service Levels.

(23)

“Critical Service Levels” means those Service Levels established under Schedule G for which a Service Level Credit may be payable. Critical Service Levels are identified and defined in Attachment G.1. Each Critical Service Level has an Expected Service Level and a Minimum Service Level associated with it unless otherwise specified. It is the intent of the Parties that all Critical Service Levels shall be quantifiable, measurable and objective.

(24)	“Deliverable Credits” means the monetary amount(s) that Supplier shall pay to Hercules (or apply against monthly Charges) in the event of a failure to achieve a Critical Deliverable as set forth in Schedules G and H or otherwise agreed by the Parties.

(25)

“Derivative Work” means a work based on one or more preexisting works, including a condensation, transformation, translation, modification, expansion, or adaptation, that, if prepared without authorization of the owner of the copyright of such preexisting work, would constitute a copyright infringement under applicable Law, but excluding the preexisting work.

(26)	“Developed Materials” means any Materials (including Software), or any modifications, enhancements or Derivative Works thereof, developed by or on behalf of Supplier for Hercules or the Eligible Recipients in connection with or as part of the Services.

(27)	“Direct Hercules Competitor” means the Entities identified in Schedule P.1 as such list of Entities may be modified by Hercules from time to time.

(28)	“Direct Supplier Competitor” means the Entities identified in Schedule P.2.

(29)	“Earnback” means the methodology used to determine the potential return of a Service Level Credit as described in Section 6 of Schedule G.

(30)	“Effective Date” has the meaning given in the preamble to the Agreement.

(31)	“Eligible Recipients” means, collectively, and to the extent such Entity is receiving Services under this Agreement, the following:

(a)

Hercules;

(b)

any Entity that is an Affiliate of Hercules on the Commencement Date, or thereafter becomes an Affiliate of Hercules;

(c)

any Entity that purchases after the Commencement Date from Hercules or any Affiliate of Hercules, all or substantially all of the assets of Hercules or such Affiliate, or of any division, marketing unit, business unit, administrative unit, or manufacturing, research or development facility thereof, provided that such Entity agrees in writing to be bound by the terms and conditions of this Agreement;

(d)

Intentionally blank;

(e)

any Entity into which Hercules or any Affiliate of Hercules merges or consolidates, provided that such Entity has assumed Hercules’ obligations under this Agreement, and provided further that such Entity agrees in writing to be bound by the terms and conditions of this Agreement;

(f)

any Entity which merges into or consolidates with Hercules or any Affiliate of Hercules;

(g)

Intentionally blank;

(h)

Intentionally blank;

(i)

any customer of an Eligible Recipient identified in clauses (a) through (h) above, or an Entity to which such an Eligible Recipient is a subcontractor, but only in connection with the provision of products or services by such Eligible Recipient to such customer;

(j)

any person or Entity engaged in the provision of products or services to Hercules or an Eligible Recipient identified in clauses (a) through (h) above, but only in connection with the provision of such products or services to Hercules or such Eligible Recipient; and

(k)

other entities to which the Parties agree.

(32)	“Entity” means a corporation, partnership, joint venture, trust, limited liability company, limited liability partnership, association or other organization or entity.

(33)

“Equipment” means all computing, networking, communications and related computing equipment (hardware and firmware) procured, provided, operated, supported, or used by Hercules, Supplier or Authorized Users in connection with the Services, including (i) mainframe, midrange, server and distributed computing equipment and associated attachments, features, accessories, peripheral devices, and cabling, (ii) personal computers, laptop computers, terminals, workstations and associated attachments, features, accessories, printers, multi-functional printers, peripheral devices, and cabling, and (iii) voice, data, video and wireless telecommunications and network and monitoring equipment and associated attachments, features, accessories, cell phones, peripheral devices, and cabling.

(34)	“Expected Service Level” means the level of performance designated as such for a Service Level, as set forth in Attachment G.1, below which an Expected Service Level Default shall be deemed to occur.

(35)

“Expected Service Level Default” means the Supplier's level of performance for a particular Service Level fails to meet the applicable Expected Service Level (but does not fail to meet the applicable Minimum Service Level) as specified in Attachment G.1, and has already failed to meet such Expected Service Level three (3) or more months in any rolling twelve (12) month period.

(36)	“Extraordinary Event” has the meaning given in Section 11.6(a) of the Agreement.

(37)

“Full Time Equivalent” or “FTE” means a level of effort, excluding vacation, holidays, training, administrative and other non-productive time (but including a reasonable amount of additional work outside normal business hours), equivalent to that which would be provided by one person working full time for one year. Unless otherwise agreed, one FTE is assumed to be at least 1840 hours as described above per Contract Year for Services other than ADM Services and at least. 2080 hours per Contract Year for ADM Services. Without Hercules’ prior written approval, one (1) dedicated individual’s total work effort cannot amount to more than one FTE.

(38)

“Functional Service Area” means each of the substantive areas defined in Schedule E in which Supplier shall provide Services (e.g., Global Procurement, Material Master, Accounts Payable, Order to Invoice, Invoice to Cash, General Accounting, Business Analysis, Applications Development and Maintenance).

(39)	“Hercules Base Case” means the summary financial base case attached hereto as Schedule K, as well as the detailed financial and budget information underlying such summary base case.

(40)

“Hercules Data” means any data or information of Hercules, an Eligible Recipient or an Authorized User that is provided to or obtained by Supplier in connection with the negotiation and execution of this Agreement or the performance of Supplier’s obligations under this Agreement, including data and information with respect to the businesses, customer, operations, facilities, products, rates, regulatory compliance, competitors, consumer markets, assets, expenditures, mergers, acquisitions, divestitures, billings, collections, revenues and finances of Hercules, any Eligible Recipient or an Authorized User. Hercules Data also means any data or information (i) created, generated, collected or processed by Supplier in the performance of its obligations under this Agreement, including data processing input and output, service level measurements, asset information, Reports, third party service and product agreements, contract charges, and retained expense and Pass-Through Expenses or (ii) that resides in or is accessed through Software, Equipment or Systems provided, operated, supported, or used by Supplier in connection with the Services, as well as information derived from this data and information.

(41)	“Hercules Facilities” means the facilities listed in Schedule O.1 that are provided by Hercules or the Eligible Recipient for the use of Supplier to provide the Services.

(42)	“Hercules Owned Materials” has the meaning given in Section 14.1 of the Agreement.

(43)	“Hercules Owned Software” means Software owned by Hercules, a Hercules Affiliate or an Eligible Recipient and used, operated, maintained or supported by or on behalf of Supplier under or in connection with this Agreement.

(44)	“Hercules Personal Data” or “Personal Data” means that portion of Hercules Data that is subject to any Privacy Laws.

(45)	“Hercules Personnel” means the employees, agents, contractors or representatives of Hercules or its Affiliates or Eligible Recipients who performed any of the Services to be provided by Supplier during the twelve (12) months preceding the Commencement Date.

(46)	“Hercules Provided Equipment” means the Equipment provided pursuant to Schedule O.3.

(47)	“Hercules Relationship Manager” has the meaning given in Section 10.1 of the Agreement.

(48)	“Hercules Rules” has the meaning given in Section 6.2(d) of the Agreement.

(49)	“Hercules Service Taxes” has the meaning given in Section 11.4(e) of the Agreement.

(50)	“Hercules Standards” has the meaning given in Section 9.5(a) of the Agreement.

(51)	“Hercules Third Party Contractors” has the meaning given in Section 4.6.

(52)

“Income Tax” means any tax on or measured by the net income of a Party (including taxes on capital or net worth that are imposed as an alternative to a tax based on net or gross income), or tax which is in the nature of an excess profits tax, minimum tax on tax preferences, alternative minimum tax, accumulated earnings tax, personal holding company tax, capital gains tax or franchise tax for the privilege of doing business.

(53)	“Key Measurements” means those Service Levels set forth in Attachment G.1 for which no Service Level Credit is payable, but which are meaningful to Hercules’ business.

(54)	“Key Supplier Personnel” means the Supplier Personnel filling the positions designated in Schedule C.1 as Key Supplier Personnel.

(55)

“Laws” means all federal, state, provincial, regional, territorial, local and other laws, statutes, ordinances, regulations, rules, executive orders, and other official releases of or by any government, or any authority, department or agency thereof, in any jurisdiction in which the Services are provided or received, including the United States Securities and Exchange Commission and the Public Company Accounting Oversight Board. The definition of Laws shall include Privacy Laws. For purposes of this Agreement, Laws also shall include all generally accepted accounting principles (“GAAP”), as such principles and standards may be modified during the Term by the Public Company Accounting Oversight Board or other applicable authorities.

(56)	“Losses” means all losses, liabilities, damages, fines, penalties, interest and claims (including taxes), and all related costs and expenses (including reasonable legal fees and disbursements and costs of investigation, litigation, experts, and settlement).

(57)

“Major Release” means a new version of Software that includes changes to the architecture and/or adds new features and functionality in addition to the original functional characteristics of the preceding Software release. These releases are usually identified by full integer changes in the numbering, such as from “7.0” to “8.0,” but may be identified by the industry as a major release without the accompanying integer change.

(58)

“Malicious Code” means (i) any code, program, or sub-program whose knowing or intended purpose is to damage or interfere with the operation of the computer system containing the code, program or sub-program, or to halt, disable or interfere with the operation of the Software, code, program, or sub-program, itself, including time bombs, viruses, software locks, drop dead devices, malicious logic, worms, Trojan horses, defector trap doors, or (ii) any device, method, or token that permits any person to circumvent the normal security of the Software or the system containing the code.

(59)

“Materials” means, collectively, Software, literary works, other works of authorship, specifications, designs, analyses, processes, methodologies, concepts, inventions, know-how, programs, program listings, programming tools, documentation, user materials, reports, drawings, databases, spreadsheets, machine-readable text and files, financial models and work product, whether tangible or intangible.

(60)	“Measurement Window” means the time during, or frequency by, which a Service Level shall be measured. The Measurement Window will exclude Hercules approved scheduled maintenance.

(61)	“Minimum Service Level Default” means the Supplier's level of performance for a particular Service Level fails to meet the applicable Minimum Service Level at any time.

(62)	“Minimum Service Level(s)” means the minimum level of performance set forth in Attachment G.1.

(63)

“Minor Release” means a scheduled release containing small functionality updates and/or accumulated resolutions to defects or non-conformances made available since the immediately preceding release (whether Major Release or Minor Release). Minor Releases shall include “Maintenance Releases” which are supplemental to and made available between Major Releases and other Minor Releases, issued and provided under specific vendor service level or maintenance obligations and contain only accumulated resolutions or mandated changes. These releases are usually identified by a change in the decimal numbering of a release, such as “7.12” to “7.13.”

(64)	“Monthly Base Charge” means the Supplier Charges for Services associated with a specific Functional Services Area for a given month at the number of Resource Units included within the Resource Baseline(s) for the applicable month.

(65)	“New Advances” has the meaning given in Section 9.14(e) of the Agreement.

(66)	“Monthly Invoice” has the meaning given in Section 12.1 of the Agreement.

(67)

“New Services” means new services that are materially different than the existing Services or non-trivial changes to the existing Services that, in each case, (i) are requested by Hercules, mandated by applicable Law, or required by changes to Hercules policies, procedures or technology infrastructure, and (ii) require materially different levels of effort, resources or expense from Supplier for which there is no current Resource Baseline or charging methodology.

(68)	“Notice of Election” has the meaning given in Section 17.5(a) of the Agreement.

(69)	“Notice of Dispute” has the meaning given in Section 19.2(c) of the Agreement.

(70)

“Out-of-Pocket Expenses” means reasonable, demonstrable and actual out-of-pocket expenses due and payable to a third party by Supplier that are approved in advance by Hercules and for which Supplier is entitled to be reimbursed by Hercules under this Agreement. Out-of-Pocket Expenses shall not include Supplier’s overhead costs (or allocations thereof), general and/or administrative expenses or other mark-ups. Out-of-Pocket Expenses shall be calculated at Supplier’s actual incremental expense and shall be net of all rebates and allowances.

(71)	“Party” or “Parties” means Hercules and Supplier.

(72)

“Pass-Through Expenses” means the expenses, if any, listed in Schedule J, as such list may be amended by the Parties from time to time, for which Hercules has agreed in advance to be financially responsible, in accordance with Section 11.2 of this Agreement, following processing and review of the third party invoice by Supplier. Supplier shall not charge any handling or administrative charge in connection with its processing or review of such invoices.

(73)	“Performance Category” means a grouping of Service Levels as set forth in Attachment G.1. Critical Deliverables do not constitute a Performance Category.

(74)	“Policy and Procedures Manual” has the meaning given in Section 9.1(a) of the Agreement.

(75)	“Pool Percentage Available for Allocation” means the total amount that may be allocated for Service Level Credits among the Critical Service Levels. The Pool Percentage Available for Allocation shall be as set forth in Schedule G.

(76)

“Privacy Laws” means Laws relating to data privacy, trans-border data flow or data protection (e.g., the implementing legislation and regulations of the European Union member states under the European Union Directive 95/46/EC), including, subject to Sections 9.16 and 15.7, any rules, regulations, directives, principles and policies of Hercules or an Eligible Recipient or any self-regulatory organizations to which Hercules or an Eligible Recipient belongs.

(77)	“Projects” has the meaning given in Section 4.5(a) of the Agreement.

(78)	“Quality Assurance” means the actions, planned and performed, to provide confidence that all business processes, Systems, Equipment, Software and components that influence the quality of the Services are working as expected individually and collectively.

(79)

“Reduced Resource Credit” or “RRC” means the credit per Resource Unit that is applicable whenever the actual consumption of a defined Resource Unit by the Eligible Recipients falls below the Resource Baseline for utilization of such Resource Unit set forth in Schedule J. The total credit will be calculated by multiplying the Reduced Resource Credit by the number of Resource Units below the Resource Baseline actually consumed by the Eligible Recipients as further described in Schedule J.

(80)	“Reports” has the meaning set forth in Section 9.2(a) of the Agreement.

(81)

“Required Consents” means the consents (if any) required to be obtained: (i) to assign or transfer to Supplier Hercules licensed Third Party Software, Third Party Contracts or Acquired Assets (including related warranties); (ii) to grant Supplier the right to use and/or access the Hercules licensed Third Party Software in connection with providing the Services; (iii) to grant Hercules and the Eligible Recipients the right to use and/or access the Supplier Owned Software, Third Party Software and Equipment acquired, operated, supported or used by Supplier in connection with providing the Services; (iv) to assign or transfer to Hercules, the Eligible Recipients or their designee(s) any Developed Materials, (v) to assign or transfer to Hercules, the Eligible Recipients or their designee(s) Supplier Owned Software, Third Party Software, Third Party Contracts, Equipment leases or other rights following the Term to the extent provided in this Agreement; and (vi) all other consents required from third parties in connection with Supplier’s provision of the Services or performance of its obligations hereunder.

(82)	“Resource Baselines” means the estimated number of Resource Units to be required and/or consumed by Hercules and the Eligible Recipients during a defined period of time and included in the Monthly Base Charges. The Resource Baselines as of the Commencement Date are set forth in Schedule J.

(83)	“Resource Unit” or “RU” means a measurable device, unit of consumption, staffing level, or other resource that is associated with the Services, as described in Schedule J, that is measured to determine Hercules’ and the Eligible Recipients’ actual utilization of such resource compared to

the applicable Resource Baseline for purposes of calculating Additional Resource Charges and Reduced Resource Credits as described in Schedule J.

(84)

“Retained Systems and Business Processes” means those systems and business processes of Hercules or an Eligible Recipient for which Supplier has not assumed responsibility under this Agreement (including those provided, managed, operated, supported and/or used on their behalf by Hercules Third Party Contractors). Retained Systems and Business Processes include equipment and software associated with such systems and business processes that is not Supplier equipment or software.

(85)

“Root Cause Analysis” means the formal process to be used by Supplier to diagnose the underlying cause of problems at the lowest reasonable level so that corrective action can be taken that will eliminate repeat failures. Supplier shall implement a Root Cause Analysis as specified in Section 7.3 or as reasonably requested by Hercules.

(86)

“Service Level Credit Allocation Percentage” means, for a particular Critical Service Level, the portion of Allocation of Pool Percentage allocated to a Critical Service Level within a Performance Category and used to calculate the Service Level Credit payable to Hercules in the event of a Service Level Default in such Critical Service Level. In no event shall the sum of all Service Level Credit Allocation Percentages in any Performance Category exceed one hundred percent (100%).

(87)	“Service Level Credits” has the meaning given in Section 7.2 of the Agreement and Schedule G.

(88)	“Service Level Default” means a Minimum Service Level Default or an Expected Service Level Default.

(89)	“Service Level(s)” means, individually and collectively, the quantitative performance standards for the Services set forth in Schedule G.

(90)	“Service Taxes” means all sales, service, value-added, use, excise and other similar taxes that are assessed against either Party on the provision of the Services as a whole, or on any particular Service received by Hercules or an Eligible Recipient from Supplier, excluding Income Taxes.

(91)

“Services” means, collectively: (i) the services, functions and responsibilities described in Article 4 and elsewhere in this Agreement (including Transition Services, Transformation Services and Termination Assistance Services) as they may be supplemented, enhanced, modified or replaced during the Term in accordance with this Agreement; (ii) ongoing Projects and new Projects, upon Hercules’ acceptance of Supplier’s proposals for such Projects in accordance with Section 4.5 and the other provisions of this Agreement; and (iii) any New Services, upon Hercules’ acceptance of Supplier’s proposal for such New Services in accordance with Section 4.4 and the other provisions of this Agreement.

(92)

“Software” means all software programs and programming for which a Party is financially or operationally responsible under Schedule E or Schedule J.1 (and all modifications, replacements, Upgrades, enhancements, documentation, materials and media related thereto), including Applications, development tools set forth in Attachment E.9A, and Systems Software.

(93)	“Specialized Services” has the meaning given in Section 9.11 of the Agreement.

(94)

“Specifications” means, with respect to business processes, Software, Equipment, Systems or other contract deliverables to be designed, developed, delivered, integrated, installed and/or tested by Supplier, the technical, design and/or functional specifications set forth in Schedule E or H, in applicable third party vendor documentation made available to Supplier, in a New Services or Project description requested and/or approved by Hercules, or otherwise agreed upon in writing by the Parties. The Parties acknowledge and agree that such third party vendor documentation does not include marketing and sales materials, unless the applicable third party vendor provides a warranty with respect to such marketing and sales materials.

(95)	“Staffing Plan” has the meaning given in Section 8.5(a) of the Agreement.

(96)

“Strategic Plan” means the plans that may be periodically developed by Hercules that set forth Hercules’ key business objectives and requirements and outline its strategies for achieving such objectives and requirements. Hercules may revise the Strategic Plan from time to time. The Strategic Plan is likely to include both annual and multi-year strategies, objectives and requirements.

(97)

“Subcontractors” means subcontractors (of any tier) of Supplier, including Shared Subcontractors (as defined in Section 9.13(c)). The initial list of Subcontractors is set forth on Schedule D, each of which has been approved by Hercules to the extent such approval is required and described thereon. Schedule D.1 may be amended during the Term in accordance with Section 9.13.

(98)	“Supplier Account Manager” has the meaning given in Section 8.2 of the Agreement.

(99)	“Supplier Facilities” means, individually and collectively, the facilities owned or leased by Supplier (or its Affiliates or Subcontractors) from which Supplier (or its Affiliates or Subcontractors) provides any Services. Supplier Facilities are listed on Schedule O.2 of the Agreement.

(100)

“Supplier Laws” has the meaning given in Section 15.7(e) of the Agreement.

(101)

“Supplier Owned Materials” has the meaning given in Section 14.3(a) of the Agreement.

(102)

“Supplier Owned Software” means any Software owned by Supplier and used to provide the Services.

(103)

“Supplier Personnel” means those employees, representatives, contractors, subcontractors and agents of Supplier, Subcontractors and Supplier Affiliates who perform any Services under this Agreement.

(104)

“Supplier Service Taxes” has the meaning given in Section 11.4(e) of the Agreement.

(105)

“System” means an interconnected grouping of manual or electronic processes, including Equipment, Software and associated attachments, features, accessories, peripherals and cabling, and all additions, modifications, substitutions, Upgrades or enhancements to such System, to the extent a Party has financial or operational responsibility for such System or System components under Schedules E or J.1. System shall include all Systems in use or required to be used as of the Commencement Date, all additions, modifications, substitutions, Upgrades or enhancements to such Systems and all Systems installed or developed by or for Hercules, the Eligible Recipients or Supplier following the Commencement Date.

(106)

“Systems Software” means all software programs and programming (and all modifications, replacements, Upgrades, enhancements, documentation, materials and media related thereto) that perform tasks basic to the functioning of the Equipment and are required to operate the Applications Software or otherwise support the provision of Services by Supplier, including operating systems, systems utilities, data security software, compilers, performance monitoring and testing tools and database managers, to the extent a Party has financial or operational responsibility for such programs or programming under Schedule E or Schedule J.1. Systems Software shall include all such programs or programming in use or required to be used as of the Commencement Date, including those set forth in Attachment E.9A to Schedule E, and those as to which Supplier received reasonable notice and/or access prior to the Commencement Date. Systems Software also shall include all such programs or programming developed and/or introduced by or for Hercules, the Eligible Recipients or Supplier after the Commencement Date to the extent a Party has financial or operational responsibility for such programs or programming under Schedule E or Schedule J.1.

(107)

“Tax Authority” means any federal, state, provincial, regional, territorial, local or other fiscal, revenue, customs or excise authority, body or official competent to impose, collect or asses tax.

(108)

“Technology and Business Process Evolution” means any improvement, upgrade, addition, modification, replacement, or enhancement to the standards, policies, practices, processes, procedures, methods, controls, scripts, product information, technologies, architectures, standards, Applications, Equipment, Software, Systems, tools, products, transport systems, interfaces and personnel skills associated with the performance of the in-scope business process products and services in line with the best practices of leading providers of such products and services. Supplier’s obligations with respect to Technology and Business Process Evolution apply not only to the Services performed by Supplier, but also to its support of the finance, accounting, customer service and related business processes and functions performed by or for Hercules and the Eligible Recipients. Technology and Business Process Evolution includes: (i) higher capacity, further scaling and commercializing of business processes, more efficient and scalable business processes, new versions and types of applications and systems/network software, new business or IT processes, and new types of hardware and communications equipment that will enable Supplier to perform the Services more efficiently and effectively as well as enable Hercules and the Eligible Recipients to meet and support their business requirements and strategies and (ii) any change to the Equipment, Software or methodologies used to provide the Services that is necessary to bring that function, Equipment or Software or those methodologies into line with the current industry standards.

(109)

“Technology and Business Process Plan” has the meaning given in Section 9.5(d) of the Agreement.

(110)

“Term” has the meaning given in Article 3.

(111)

“Termination Assistance Services” means the termination/expiration assistance requested by Hercules to allow the Services to continue without interruption or adverse effect and to facilitate the orderly transfer of the Services to Hercules or its designee, as such assistance is described in Section 4.3 and Schedule I.

(112)

“Termination Charge” means the termination charges payable by Hercules upon termination pursuant to Section 20.2 of the Agreement, as set forth in Schedule N.

(113)

“Third Party Contracts” means all agreements between third parties and Hercules, an Eligible Recipient or Supplier (or Supplier’s Subcontractors or Affiliates) that have been or will be used to provide the Services to the extent a Party has financial or operational responsibility for such contracts under Schedule E or Schedule J.1. Third Party Contracts shall include all such agreements in effect as of the Commencement Date, and those as to which Supplier received reasonable notice and/or reasonable access prior to the Commencement Date. Third Party Contracts also shall include those third party agreements entered into by or for Hercules, an Eligible Recipient or Supplier (or Supplier’s Subcontractors or Affiliates) after the Commencement Date to the extent a Party has financial or operational responsibility for such Third Party Contracts under Schedule E or Schedule J.1.

(114)

“Third Party Materials” means intellectual property, Third Party Software or other Materials that are owned by third parties and provided under license to Supplier (or its Affiliates or Subcontractors) or Hercules (or the Eligible Recipients) and that have been or will be used to provide or receive the Services.

(115)

“Third Party Software” means all Software products (and all modifications, replacements, Upgrades, enhancements, documentation, materials and media related thereto) that are provided under license or lease to Supplier or Hercules or an Eligible Recipient that have been or will be used to provide or receive the Services to the extent a Party has financial or operational responsibility for such Software products under Schedule E or Schedule J.1. Third Party Software shall include all such programs or programming in use or required to be used as of the Commencement Date, including those set forth in Attachment E.9A, and those as to which Supplier received reasonable notice and/or access prior to the Commencement Date. Third Party Software also shall include all such programs or programming licensed and/or leased after the Commencement Date to the extent a Party has financial or operational responsibility for such Third Party Software under Schedule E or Schedule J.1.

(116)

“Transition Milestone” has the meaning given in Section 4.2(b) of the Agreement.

(117)

“Transition Period” means the period that commences on the Effective Date and expires 11:59:59 p.m., Eastern Time, on the date specified for the completion of the Transition Services as specified in the Transition Plan, unless extended in accordance with Section 4.2 of the Agreement.

(118)

“Transition Plan” means the outline set forth in Schedule H and the detailed plan developed pursuant to Section 4.2 of the Agreement.

(119)

“Transition Services” means the services, functions and responsibilities described in Section 4.2 of the Agreement and the Transition Plan to be performed by Supplier during the Transition Period.

(120)

“Upgrade” and its derivatives means the updates, renovations, enhancements, additions and/or new versions or releases of Software or Equipment by Supplier. Unless otherwise agreed, financial responsibility for the costs, fees and expenses associated with an Upgrade of Software or Equipment shall be allocated between the Parties in accordance with Section 6.4 and Schedule J.

(121)

“Yearly Performance Weighted Average” means, with respect to each Critical Service Level for which there was a Service Level Default during the preceding Contract Year, the average of the Supplier’s average monthly performances in the Critical Service Level during the preceding Contract Year.

Hercules

Schedule C

Key Supplier Personnel

and

Competitive Restrictions

SCHEDULE C.1

KEY SUPPLIER PERSONNEL

This is Schedule C.1 to the Master Professional Services Agreement by and between Hercules and Supplier (the “Agreement”). All capitalized terms used but not defined in this Schedule shall have the meanings given them in the Agreement.

In accordance with Section 8.1 of the Agreement, Key Supplier Personnel shall hold the following positions and the Key Supplier Personnel listed for each such position are approved as of the Effective Date.

Position	Key Supplier Personnel	Committed Period	Location
Relationship Manager	William K Childress	2 years*	USA
Supplier Account Manager / Operations Leader	Subrata Mukherjee	2 years	India
Service Delivery Leader	Jorge Lopez	2 years	Mexico
Service Delivery Leader	Andrei Romanescu	2 years	Europe
Applications Development and Maintenance (including production support) On-Site Project Manager	Karthikeyan Natarajan (subject to final Hercules approval)	2 years	USA
Applications Development and Maintenance (including production support) Offshore Project Manager	TBD	2 years	India
Transition Leader	Satish Mokkapati	For applicable Transition Period	India
Transition Leader	Laura Trevizo	For applicable Transition Period	Mexico
Transition Leader	Nico Verhelst	For applicable Transition Period	Europe
ADM Transition Leader	TBD (may be the same as the ADM on-site project manager)	For applicable Transition Period	USA

* Notwithstanding anything to the contrary in Section 8.1 of the Agreement, the Relationship Manager shall not be obligated to provide full time and effort to Hercules.

SCHEDULE C.2

COMPETITIVE RESTRICTIONS

This is Schedule C.2 to the Master Professional Services Agreement by and between Hercules and Supplier (the “Agreement”). All capitalized terms used but not defined in this Schedule shall have the meanings given them in the Agreement.

The following positions are subject to the restrictions described in Section 8.4(d):

Position

All positions relating to Key Supplier Personnel (other than the Relationship Manager, Bill Childress as of the Effective Date)

Supplier Personnel performing business analytical Services, unless otherwise mutually agreed

Other Supplier Personnel as mutually agreed

Hercules

Schedule D

Subcontractors

SCHEDULE D

SUBCONTRACTORS

This is Schedule D to the Master Professional Services Agreement between Hercules and Supplier (the “Agreement”). Unless otherwise expressly defined herein, the capitalized terms used herein shall have the meaning assigned to them in the Agreement.

The Supplier may utilize the following Subcontractors to perform the services described below in accordance with Section 9.13 of the Agreement:

Subcontractor	Functional Service Area	Description/Scope of Services	Audit Rights Per Section 9.10	Assignment Rights Per Section 6.4(c)	Post Termination Rights Per Section 4.3(b)(2)(ii)
Runway International	Service Center	Runway provides high quality outsourced multi-lingual services (with a specific focus on Nordic languages: Swedish, Finnish). The scope of activities include IT Helpdesk, Order Management and Customer Service.	Yes	No	No
Xerox Global Services, Docuguard, Iron Mountain	Scanning, Imaging, Archiving and Printing services	Scanning, Imaging, Archiving and Printing services of documents in Europe.	No	No	No
Bharti, BSNL, Reliance, TATA teleservices, VSNL AT&T, BT Global services, C&W, Energies, MCI , Sprint, Telstra, VSNL	Telecommunications, Datalines, etc	Electronic telecommunications and data transfer	No	No	No
Apara, CMS, Data craft, E&Y, Gartner, GTL, HP , KPMG, MIEL e Security, Price Waterhouse Coopers, Wipro	Various consulting and maintenance requirements	Training of Supplier Personnel, Supplier internal information technology, maintenance, consulting and business process support. For the avoidance of doubt, these Subcontractors are not approved hereunder for providing Supplier Personnel that are FTE Resource Units.	No	No	No

Hercules

SCHEDULE E

STATEMENT OF WORK

SCHEDULE E

Statement of Work

This is Schedule E to the Master Professional Services Agreement by and between Hercules and Supplier. All capitalized terms and acronyms used but not defined in this Schedule E will have the meanings given them in the Agreement, and if not defined therein, their meaning in the information technology and business process industries or the SAP Software and related process, as applicable.

I. General

Supplier shall provide to Hercules the quantity of Supplier Personnel as set forth in Schedules J and M and as otherwise required under the Agreement or requested by Hercules. Such Supplier Personnel shall have the skills and experiences (the “Profiles”) described below in Section II to this Schedule E and be qualified to perform the services, functions and responsibilities described in Schedules E.1 through E.12, as well as any additional services, functions and responsibilities that Supplier is obligated to perform under the Agreement. Supplier shall perform such Services pursuant to the Agreement (including the Staffing Assurances set forth in Schedule J) and subject to the following:

To the extent Services are characterized to be provided to Hercules, such Services will also be provided to the Eligible Recipients. References to Hercules will be deemed to also be references to Eligible Recipients.

The specific Services described in each Statement of Work Schedule attached to this Schedule E (e.g., Schedules E.1, and E.2) are indicative of certain Services Hercules may require and Supplier shall perform under the Agreement. During the Transition Period, the Parties intend to revise and refine the specific Statements of Work set forth in this Schedule E as mutually agreed.

The Hercules Relationship Manager (or his or her designee) may prioritize Services and identify other new or additional work activities that could be performed by Supplier Personnel with the skills and experiences described herein or as otherwise required under the Agreement, subject to the other provisions of the Agreement.

Supplier shall provide the Services as necessary in order to satisfy the Service Levels and in accordance with the Policy and Procedures Manual, the then current Hercules Standards as described in Section 9.5 in the Agreement, applicable Laws (in accordance with Section 15.7 of the Agreement), and as directed by Hercules from time to time. Supplier shall manage and perform the Services in a tightly integrated manner and fully cooperate with any Hercules Third Party Contractor providing information technology infrastructure Services. The foregoing includes using Hercules’ Remedy System and related tools and infrastructure, including the help desk.

Supplier shall provide the Services as they may evolve and be supplemented and enhanced during the Term of the Agreement due to changes in applicable Laws, technologies and Hercules’ business needs.

Nothing herein shall limit Supplier’s obligations to meet the Staffing Assurances described in Schedule J.

II. Supplier Profiles

Supplier shall provide FTE Supplier Personnel with the following minimum Profiles for the applicable Services. The Profiles below shall be revised and refined during the Transition Period based on Hercules’ requirements and Supplier shall seek to provide Supplier Personnel meeting

such requirements using commercially reasonable efforts and by prioritizing the Hercules account. From time-to-time thereafter, the Parties may mutually agree to revise and refine such Profiles based on Hercules’ then-current requirements.

References in the Profiles to experience mean relevant experience. References to a “Commerce” degree or background mean a business, finance or accounting degree or background.

Before assigning any proposed Supplier Personnel to perform the Services, whether as an initial assignment or a subsequent assignment, Supplier shall (i) verify that such Supplier Personnel meets the requirements of the Profile, (ii) notify Hercules of the proposed assignment, (iii) provide reasonable opportunity for Hercules representatives to interview (in-person or through a conference call) the individual, and (iv) provide Hercules with a resume and such other information about the individual as may be reasonably requested by Hercules.

If Hercules in good faith objects to any proposed assignment or the proposed individual does not meet the applicable Profile, the Parties shall attempt to resolve that situation on a mutually agreeable basis. If the Parties have not been able to resolve that situation within five (5) business days of Hercules communicating its concerns to Supplier, Supplier shall not assign the individual to that position and shall propose to Hercules the assignment of another individual meeting the applicable Profile in accordance with the Agreement.

1. Global Procurement

Skill Set/Qualifications	Purchasing Indirect (Non Repetitive)	Purchase Data Maintenance and Material Master Maintenance (SAP)
	Basic college degree in Engineering / Science / Commerce	Basic college degree or equivalent
	Good reading / writing capabilities: English, Spanish, Italian, French, German, Swedish, Finnish throughout the team (alternatively, ability to use translation tools or support from other labor pools)
	Good spoken/verbal communication skills - English	Good spoken/verbal communication skills - English
	Experience - 0 to 3 years in commerce or engineering At least 1 or 2 Supplier Personnel will have practical experience.	Experience - 0 to 3 years

Supervisor-

Graduate/ post graduate degree

Strong leadership and team handling skills

Relevant purchase-to-pay team lead experience

Good understanding of the business and an analytical background

2. Accounts Payable

Skill Set/Qualifications	Accounts Payable
	Basic college degree with Commerce/Non-commerce background
	Good reading / write capability: English, Spanish, Italian, French, German, Swedish, Finnish throughout the team (alternatively, ability to use translation tools or support from other labor pools)
	Good spoken/verbal communication skills - English
	Experience - 0 to 2 years At least 1 or 2 Supplier Personnel will have practical experience.

Supervisor-

Graduate/ post graduate commerce degree

Strong leadership and team handling skills

Relevant accounts payable and/or invoice-to-pay team leader experience and transaction processing experience

Good understanding of the business and an analytical background

3. Order To Invoice

Skill Set/Qualifications	Customer Service Representative
	High school diploma; actively pursuing a college degree, desired
	2 or more years of experience in a traditional customer service environment or related service situation
	SAP or equivalent application experience
	Other attributes: · Customer focused · Action oriented · Ability to make timely decisions · Ability to learn on the fly · Excellent interpersonal skills · Effective listening skills · Demonstrated technical learning · SAP knowledge - sales order to invoice · Personal computer skills, including skills with Excel, Word and Lotus Notes
	Language skills - English and others as applicable

Skill Set/Qualifications	Business Support / Internal Sales
	Commercial or technical education; bachelors degree, preferred
	5 or more years of experience in sales or customer service
	Other attributes and skills: · SAP or other ERP knowledge, desirable · Lotus Notes (or other email) and MS Office knowledge (basic Excel skills) · Team player · Communication · Initiative · Attention to detail · Business acumen · Action oriented · Customer focus · Negotiation skills
	Knowledgeable in English (spoken, verbal, writing skills); second international language as described below, subject to Hercules requirements

Skill Set/Qualifications	Supervisor
	• B.S. or B.A. degree (technical degree, preferred)
	· 5 or more years of experience in business management, supply chain, sales, and/or related fields · Background in sales, business management, and/or supply chain, preferred. · Proven leadership skills and the willingness to work in a changing environment with flexibility and adaptability
	• Computer literate, preferably familiar with SAP
	Other attributes: · Customer focused · Action oriented · Experience directing others · Command skills · Negotiating skills · Good ethics and values; integrity and trust · Excellent communication skills; Informing · Conflict management · Ability to build effective teams · Caring about direct reports · Developing direct reports · Organizational agility

	Language Skills
PTV Europe	Dutch, French, English, Swedish, Finnish, German, Spanish, Portuguese, Italian
Aqualon Europe	Dutch, French, English, German, Spanish, Turkish, Italian, Russian

4. Invoice To Cash (North America)

Skill Set/Qualifications	Accounts Receivables	Credit & Collections
	Basic college degree	Basic college degree
	Good communication skills - verbal and written	Good communication skills - verbal and written
	Good spoken/verbal communication skills - English	Good spoken/verbal communication skills - English
	Experience - 0 to 3 years	Experience - 0 to 3 years

Supplier shall also provide supervisors and managers with the following qualifications -

Supervisor -

Graduate/ Post Graduate degree

2-3 years of team handling experience

Good understanding of the business and an analytical bent of mind

Manager -

Graduate/ Post Graduate degree

Strong leadership and team handling skills

Ability to lead and execute projects

4-5 years of relevant experience in handling accounts receivable or financial portfolios

5. Invoice To Cash (Europe)

Skill Set/Qualifications	Accounts Receivables	Credit & Collections
	Basic college degree	Basic college degree
	Good communication skills	Good communication skills - verbal/written
	Language (spoken/verbal) - English	Language (spoken/verbal) - English / French / Italian/ Spanish/ German/ Dutch
	Experience - 0 to 3 years	Experience - 0 to 3 years

Supervisor -

Graduate/ post graduate degree

2-3 years of team handling experience

Good understanding of the business and an analytical bent of mind

Manager -

Graduate/ post graduate degree

Strong leadership and team handling skills

Ability to lead and execute projects

4-5 years of relevant experience in handling accounts receivable or financial portfolios

6. General Account (Record to Report)

Skill Set/Qualifications	Record to Report
	Basic college degree with Commerce background
	Good communication skills -verbal/written
	Language - English
	· Experience - 2 to 3 years · Familiarity with SAP (preferred, other ERP application experience may also be acceptable), MS Office, and reporting · Hyperion or Unison experience, desirable

Supplier shall also provide one manager who is common to the business analysis and record to report Services. This individual shall be a qualified accountant with 3-4 years of relevant work experience and report into the Service delivery leader for all finance and accounting related processes. This manager would be responsible for doing the initial review at Supplier and providing regular updates and dashboard calls with Hercules.

Manager:

Graduate/ post graduate degree with commerce background

Strong leadership and team handling skills

Ability to lead and execute projects.

4-5 years of relevant experience

7. Global Business Analysis

Skill Set/Qualifications	Global Business Analysis
	Basic College Degree with Commerce background
	Good communication skills -verbal/written
	Language - English
	· Experience - 3 to 5 years · Familiarity with SAP (preferred, other ERP application experience may also be acceptable), MS Office, and reporting · Hyperion or Unison experience, desirable

9. Other

Other Profiles are set forth in the applicable Statement of Work.

III. Other Requirements and Services

The ratios of Supplier Personnel shall be no less advantageous to Hercules than the following: (i) 1:15 supervisors to associates, and (ii) 1:60 operations leaders to associates, except for Services performed in Europe where five (5) team leaders shall exist per 56 FTEs.

Supplier shall also provide at no Charge: (i) one (1) dedicated full time operation leader in India (whereas in Romania and Mexico the operation leaders shall be shared), (ii) supervisors and operations leaders (at the ratios described above), and (iii) two (2) FTE man-months of high analytics support Services per Contract Year as requested by Hercules. The Parties acknowledge and agree that such FTEs are in addition to and not set forth in Schedule J.

HERCULES

Schedule E.1

Global Procurement

TABLE OF CONTENTS

1.0 INTRODUCTION 3

2.0 PURCHASING - INDIRECT (NON-REPETITIVE) 3

3.0 PURCHASE MASTER DATA MAINTENANCE (SAP) 4

5.0 PURCHASED MATERIAL MASTER DATA 4

6.0 VENDOR MASTER DATA (see AP SOW) 5

7.0 PROBLEM RESOLUTION 5

8.0 E-AUCTION þ REVERSE AUCTION 6

9.0 REPORTING and ANALYTICAL ANALYSIS

10.0 OTHER SUPPORT 7

11.0 PURCHASE CARD 7

12.0 REPORTING AND RECORDS RETENTION

12.1 Reporting

12.2 Records Retention

13.0 PERFORMANCE MEASUREMENT AND EFFECTIVENESS

14.0 MONITOR AND COMMUNICATE SERVICE COMPLIANCE

1.0 INTRODUCTION

This Schedule details certain Global Procurement services that the Supplier will provide as of the Commencement Date.

2.0 PURCHASING - INDIRECT (NON-REPETITIVE)

Task	Hercules	Supplier
Clear (technical) specification of the goods or service to be provided.	X
Requested quantity, unit of measure and delivery date or period.	X
Cost center and cost element (general ledger account) to be charged or for capitalized projects a SAP project number and WBS element number.	X
Three qualified suppliers or a letter justifying a single source (to be send to responsible Hercules buyer).	X
Receive and review requisitions/requests for goods/services for completeness, accuracy, and policy and procedure compliance.		X
Create SAP requisitions for all requests received outside of SAP.		X
Reroute or return incomplete requisitions/requests to the requestor for clarification of requirements.		X
Follow-up in obtaining appropriate spend approval per the Hercules Purchase Requisition Release Strategy.		X
Convert released purchase requisitions that are sourced to preferred vendors into purchase orders.		X
Insure price, taxes, freight and other applicable commercial terms relating to the order are correct and comply with Hercules policies and applicable supplier contract(s).		X
Follow-up with responsible Hercules buyers to obtain appropriate purchase approval per Hercules PO Release Strategy.		X
Forward purchase requisitions that must be sourced to responsible buyer.		X
Issue authorized purchase orders to the supplier (if not via auto fax).		X
Obtain and maintain order acknowledgement.		X

3.0 PURCHASE MASTER DATA MAINTENANCE (SAP)

Task	Hercules	Supplier
Source, negotiate and contract with suppliers for the delivery of goods and services that meet Hercules’ requirement.	X
Agreed price, term and conditions will be sent to the Supplier in order to create and maintain supplier agreements in SAP.	X
Create and maintain necessary outline agreements as may be required by the buyer for raw materials, packaging and other goods and/or services.		X
Create and maintain info records as may be required by the buyer for third party direct shipments.		X
Create and maintain info records as may be required by the buyer for goods and services, including to stores and spares materials.		X
Create and maintain info records as may be required by responsible Hercules personnel for inter-company orders.		X
Create and maintain source lists as may be required by the buyer and/or upon request.		X
Create and maintain quota arrangements in SAP as appropriate.		X
Create and maintain standard text fields.		X
Perform updates to SAP purchase master data as required based on input received from the responsible Hercules personnel.		X
Review and update open purchase orders as may be required based on revised purchase master data.		X
Insure all SAP purchase data is compliant with corresponding supplier agreements as approved by Hercules.		X
Validate correct and timely update of supplier agreements in SAP.		X
Communicate and confirm availability of supplier agreements in SAP to Authorized Users.		X

4.0 INTENTIONALLY BLANK.

5.0	PURCHASED MATERIAL MASTER DATA

Task	Hercules	Supplier
Clearly define the technical specification of all raw materials and finish products to be purchased, produced and sold by Hercules.	X
Introduce new raw material and finish products following the new product introduction (“NPI”) and/or request for trail (“RFT”) and/or request for commercialization (“RFC”) processes.	X
Customer service and/or buyer can request via lotus notes database to extend an existing material to another plant in SAP.	X
Check that all required purchased material master record(s) for a new product have been set-up correctly and completely in SAP based on input received from the NPI process.		X
Submit necessary requests to create and/or extend materials in SAP to the material master group. The actual creation or extension must be done by Supplier through a separate material master group due to Hercules’ segregation of duty requirements.		X
Inform the responsible Buyer to source a new material for a specific plant.		X

6.0	VENDOR MASTER DATA (see AP SOW)

Vendor master data tasks are performed through the Accounts Payable Statement of Work set forth in Schedule E.3.

7.0	PROBLEM RESOLUTION

Task	Hercules	Supplier
Investigate and resolve blocked invoices - i.e., quantity differences.	X
Manually release blocked invoices for payment in SAP if and when the auto release function does not work.	X
Investigate and resolve all customer and supplier related complaints that could involve a potential financial claim and/or legal action.	X
Address and resolve all supplier related issues that have been escalated by the Supplier.	X
Investigate and resolve blocked invoices - i.e., price differences.		X
Investigate and resolve parked invoices.		X
Request and follow-up with suppliers regarding credit memos.		X
Act as first point of contact to address any supplier questions or issues raised by Accounts Payable personnel (Reminder & Queries group). Escalate any issues, as appropriate, to the responsible buyer for further resolution.		X
Expedite late deliveries based on requests received from Authorized Users and/or delivery due report.		X
Follow-up on open supplier complaints with responsible buyer and/or supplier. Update supplier complaint database as appropriate.		X
Submit information technology security tickets as requested. All security approvals will remain internal to Hercules (or its IT outsourcing vendor).		X
Submit IT break-fix tickets as required.		X

8.0	E-AUCTION þ REVERSE AUCTION

Task	Hercules	Supplier
Determine what goods and services are eligible for reverse auction.	X
Determine which suppliers should be invited to participate.	X
Clearly defined technical specification and requirements of the goods and services to be auctioned.	X
Final allocation of the Hercules business.	X
Gather spend data and potential supplier data as requested by the buyer.		X
Support buyers in the set-up and coordination of reverse auctions, including creation of suppliers in the e-auction database and insuring suppliers have confirmed participation in the upcoming event.		X
Monitor and provide support before, during, and after the reverse auction, including insuring that all suppliers have logged on and facilitating.		X
Resolution of any technical problems that may develop during the execution of an auction.		X
Assist with the implementation of the reverse auction results, including changing the source in SAP, updating SAP supplier agreements, and communicating the changes to the Authorized Users.		X
Maintain auditable records of all auction activities.		X

9.0 OTHER SUPPORT

Task	Hercules	Supplier
Cleary define the required business support, including the scope, frequency and timeline.	X
Request product data including but not limited to MSDS and product steward forms from suppliers on behalf of SHERA or the business managers.		X
Create and maintain procurement related data on Hercules intranet website as requested e.g., freight codes (US only), harmonized tariffs, etc.		X
Provide support for SAP system tests as may be required for new design and/or configuration changes.		X

10.0 PURCHASE CARD

Task	Hercules	Supplier
Submit a request for a new or replacement purchase card.	X
Management approval of all purchase card requests in accordance with the assigned legal delegation of authority.	X
Management approval of monthly purchase card spends by P-card holder and, as appropriate, re-allocation of cost to a different cost center.	X
Process new purchase card requests confirming valid approvals and delegation of authorities to insure compliance with Hercules policies and procedures		X
Cancel cards as and when appropriate		X
Create and maintain card holder details in purchase card platform (currently GE SAM system as of the Effective Date)		X
Maintain commercial data, including to transactional limits and merchant commodity codes in the purchase card platform as requested and as approved by responsible Hercules personnel in compliance with Hercules policies and procedures.		X
Prepare monthly activity reports of purchase transactions and forward to identifies Hercules personnel.		X
Provide support on the purchase card program including training.		X
Prepare and review monthly payment run (currently applicable to North America only). Identify and correct as required and approved to insure successful upload of payment run into SAP.		X

HERCULES

Schedule E.2

Material Master

TABLE OF CONTENTS

1.0 INTRODUCTION3

2.0 MATERIAL MASTER3

1.0	INTRODUCTION

This Schedule details certain Material Management services that the Supplier will provide as of the Commencement Date.

The Parties acknowledge and agree that this Schedule E.2 may be substantially revised during the Transition Period.

2.0	MATERIAL MASTER

Task	Hercules	Supplier
1. Create new raw material masters (PURC's).	X

2. Extend existing raw material masters.	X

3. Create new LEER material masters (i.e., Returnable binis).	X

4. Extend existing LEER material masters.	X

5. Create new Aqualon material masters.	X

6. Extend existing Aqualon material masters.	X

7. Create new functional paper material masters.	X

8. Extend existing functional paper material masters.	X

9. Perform master data cleansing.	X

11. Project implementations.		X

12. Process Remedy tickets (Troubleshooting)		X

13. Create new process chemical material masters		X

14. Extend existing process chemical material masters.		X

15. Maintain product hierarchy table; assign hierarchy to new material masters.		X

16. Perform master data cleansing as designated by Hercules.		X

17. Provide Reporting Services.		X

18. Training and ongoing support of offshore resources		X

HERCULES

Schedule E.3

Accounts Payable

TABLE OF CONTENTS

1.0 INTRODUCTION3

2.0 General Requirements3

3.0 Accounts Payable Processing4

4.0 AP - OTHER PROCESSING7

5.0 EUROPEAN AP PROCESSING9

6.0 REPORTING AND RECORDS RETENTION: (N.A. + Europe)9

7.0 PERFORMANCE MEASUREMENT & EFFECTIVENESS (N.A. + Europe)10

8.0 MONITOR / COMMUNICATE SERVICE COMPLIANCE (N.A. + Europe)10

1.0	INTRODUCTION

This Schedule details certain Accounts Payable Services that the Supplier will provide as of the Commencement Date.

2.0	GENERAL REQUIREMENTS

Supplier

Hercules

1	Understand all Hercules accounts payable (“AP”) policies and how current processes and systems map against those policies.	X
	Communicate any AP issues back to Hercules according to escalation procedures for Hercules resolution.	X
	Respond to Supplier on escalated AP related issues.		X
2	Provide input to Hercules on AP policy change opportunities, proposed policy changes, industry direction, and how policy changes will impact then-current work processes and systems.	X
3	Ensure that existing and new Hercules AP policies are incorporated into the systems and processes and desktop procedures.	X
4	Ensure that Hercules AP established policy guidelines are followed and report policy exceptions within 24 hours to Hercules.	X
	Respond to policy exception.		X
5	Identify and resolve issues related to AP work processes.	X
	5.1 Provide guidance and advice to HERCULES on then-current AP work processes design and potential implications.	X
	Approve any AP work process changes.		X
6	Comply with Hercules AP processes and systems security and access policies.	X
	Granting of system access.		X
7	Drive continuous improvement of the work processes, documentation, and Services.	X
	Review and approve any significant process changes.		X
8	Support Hercules internal audit and third-party audits to ensure compliance with existing Hercules and US GAAP rules and requirements in accordance with Section 9.4 and 15.7 of the Agreement.	X
9	Prepare and maintain the process and testing documentation, as well as providing testing required by the Sarbanes-Oxley Act 2002, in accordance with the methodologies established by HERCULES.	X
10	Provide support processing capabilities in the following languages: North American only English, with some French. Europe: English, French, German, Spanish, Italian, Dutch, Russian, Swedish, Finnish.	X
11	Provide support processing capabilities for the following hours of operations: North America ►AP Processing - anytime; problem resolution 8am-5pm EST. Europe►AP Processing - anytime; problem resolution 9am-6pm Central European time.	X
12	Provide support process capabilities in accordance with the monthly closing schedule.	X
	Approve accounts payable accrual and transmit to appropriate party for posting.		X

3.0 ACCOUNTS PAYABLE PROCESSING

3.1	Manage Document Receipt and Scanning
	1. Receive and process vendor invoices, source documents, EDI payment files and electronic files.	X
	2. Open vendor related documents, record receipt, and sort based on process requirements.	X
	-Take action on non-invoice documents (i.e., statements, address change notifications).	X
	3. Perform required audit and review functions to verify adequacy of source document prior to processing.	X
	-Check Purchase order quoted on invoice, remit to address, ship to address and sold to address are readable.	X
	-Resolve unreadable documents	X
	-Check VAT registration number	X
	-VAT charged correctly	X
	4. Return documents not meeting requirements within 2 business days to appropriate parties, providing details of policy non-compliance.	X
	5. Park and scan returned documents	X
	6. Send invoices to country of origin (if required by Law).	X
	7. Present non-purchase order documents for processing and authorization.	X
	8. Establish controls for verification of all documents scanned.	X
	9. Coordinate storage, filing, and retrieval of source document in accordance with Hercules policies.	X
	10. Provide original source documents to Hercules within 2 business days upon request.	X
3.2	Verify and Process Invoices
	1. Process invoice transactions in accordance with Hercules policy guidelines, including the approved purchase order to invoice matching technique (e.g., two- or three-way match).	X
	DOA approval process for non-purchase order invoices (North America).	X
	Maintain direct posting database (EUR) as pre-approval of Non-purchase order invoices (i.e., Regional buyers).		X
	Processing of Non-purchase order invoices, in accordance with DPD.	X
	2. Manage process to request the check to be printed and mailed, including requests for immediate checks and special handling (i.e., overnight requirements, return to vendor/field etc.).	X
	3. Develop vendor-specific rules in accordance with Hercules policy guidelines.	X
	4. Set up/maintain recurring transactions for processing (for example: rent and utility payments, consolidated invoice uploads etc.).	X
	5. Resolve un-invoiced receipts.	X
	6. Process all immediate check requests in accordance with Hercules Check Request and Expedited Payment Policies.	X
	7. Audit, correct, add, and process garnishment transactions.	X
	8. Park invoices which cannot be posted.	X
	9. Follow-up on parked / blocked invoices after five (5) working days + Update IXOS (i.e., the scanning system)	X
3.3	Resolve Exceptions
	1. Present to Hercules resolution authorities and invoice exceptions in accordance with Hercules policies.	X
	2. Research, resolve, and correct EDI file and all other electronic payment method exceptions immediately.	X
	3. Work with Hercules third-party payment processor if required to resolve exception items.	X
	4. Perform exception resolution on invoices and payments within one (1) business day.	X
	5. Track all invoice and payment exceptions through resolution.	X
	5A. Return parked documents not meeting requirements, providing details of non-compliance within 2 business days to Hercules	X
	6. Return parked invoices to internal / external vendors with cover letter identifying the issues for resolution.		X
	7. Resolve un-invoiced direct debits, by contacting the vendors and requesting copies of invoices.	X
	8. Process the approved parked documents, provided that the work item is returned to the AP representative.	X
	9. Workflow administrator activities : a. Monitor all work items in SAP Inboxes, b. Forward work items on request to other inboxes c. Retrieve original invoices on request of AP representatives in order to return it to the vendors and delete work items accordingly. d. Check the validity of the work items to be deleted e. Report all work items to be deleted and allocate it to categories.	X
3.4	Process Payments (Disbursements)
	1. Perform pre-disbursement review as required by Hercules policies (e.g., audit of processed documents).	X
	2. Prepare payment proposal file according to Hercules policies.	X
	2A Approves payment proposal.		X
	2C Prepare payment settlement.	X
	2D Approve payment settlement and transmit to bank.		X
	2E Complete foreign draft payment process		X
	2f Complete manual check process		X
	3. Audit high-dollar transactions as defined by Hercules policy. This shall be completed prior to execution of settlement.		X
	4. Audit, track, and resolve duplicate payments in accordance with Hercules policies.	X
	5. Manage all other disbursement-related activity, including returned checks.		X
	6. Process all customer refund checks in accordance with Hercules policies.	X
	7. Reconcile settlement totals to file transmission totals.		X
	8. Reconcile all checks and accounts as required by Hercules.	X
	9. Maintain a schedule of unpaid items and report items that should be adjusted to Hercules.	X
	10. Hercules owns payment parameters		X
3.5	Set up and Monitor Vendor Master File
	1. Create and maintain vendor master data in SAP including general data, accounting data (including 1099 designation) and purchasing data according to Hercules policies.	X
	For all new vendor master files, create a W9	X
	2. Complete vendor set-up/change maintenance.
	3. Follow up with vendor to obtain missing information or bank details.	X
	3. Perform client daily vendor master audit.	X
	4. Provide support for issues involving vendor liens and/or other legal issues.	X
	5. Utilize current or comparable automated authorization programs to set up vendor master including, the financial and procurement material master view.	X
	6. Adhere to Hercules policy as it relates to vendor master set-up.	X
	7. Contact buyer for clarification on payment terms if needed.	X
	8. Verify vendors (including new vendors and, when requested by Hercules, existing vendors) are in compliance with applicable Law, including country specific legal requirements such as Denial Vendor List as applicable for the U.S.	X
3.6	Respond To Inquiries
	1. Receive, track, research, and resolve (action and/or escalate) inquiries (internal and external) within 1 business day.	X
	2. Track escalated inquiries through resolution.	X
	2A Respond to escalated inquiries sent to Hercules		X
	3. Monitor all received reminders & queries. Record all reminders and queries in the R&Q database for later reference and analysis.	X
	3. Provide inquiry tools.	X
	4. Support Hercules initiatives concerning inquiry tool utilization and process change during the Term.	X

4.0 AP - OTHER PROCESSING

4.1	Month-End Closing
	1. Prepare journal entries (including, accruals and missing entries).	X
	1A. Approve journal entries		X
	2. Prepare and maintain audit schedules.	X
	3. Reconcile associated accounts (e.g., accruals, payables, and general ledger accounts).		X
	4. Analyze variances in accordance with Hercules policy guidelines.		X
	5. Research and resolve balance sheet/income statement issues.		X
	6. Receive, track, and resolve inquiries.		X
	7. Complete month-end close procedures in accordance with Hercules policy guidelines.		X
	8. Provide Hercules an overview of the parked documents per balance key date, including reasons of the parking as well as advising the A&R if an accrual is to be built up.	X
	9. Provide Hercules an overview of the debit balances on vendor accounts, including advising the A&R to build up an accrual.	X
	10. Check PO’s created with allocation to multiple cost centers, for which the invoice receipt (“IR”) is missing (goods receipt (“GR”) is done with no value) and advice A&R to set-up an accrual if necessary.	X
4.2	Bank Account Reconciliations.
	1. Analyze and resolve variances in accordance with Hercules policies (includes clearing items in contra-account).	X
	2. Track unclaimed property (e.g., vendor checks not cashed).	X
	3. Provide cleared check copies as requested.	X
	4. Issue stop payments and voids.	X
	5. Check positive pay on daily basis.	X
4.3	Accounts Payable - Miscellaneous (N.A. + EUROPE)
	1. Reconcile and distribute suspense account items in accordance with Hercules policy.	X
	2. Reconcile accounts payable sub-ledger to general ledger balances.	X
4.4	AP System Table Maintenance (N.A. + EUROPE)
	1. Maintain (SAP and Lotus Notes) system tables providing processing tolerances and guidelines for invoice processing, invoice matching, EDI processing, print processing, etc.		X
4.5	Signatory File Management (N.A. + EUROPE)
	1. Develop schedules and perform monthly audit of signatory file additions, deletions, and changes.		X
	2. Research and resolve audit findings.		X
4.6	Procurement Card Processing
	1. Upload P-Card distributions to the general ledger.	As described throughout Schedule E
	2. Balance general ledger, accounts payable, and other system input/export interface files.	As described throughout Schedule E
4.8	Debit Balances Management (N.A. + Europe)
	1. Identify debit balances by vendor.	X
	2. Collect debit balances in accordance with Hercules policies.	X
	3. Negotiate alternative payment plans with vendors in accordance with Hercules policy. Obtain Hercules approval.		X
	4. Prepare source documentation for Hercules legal review.	X
	5. Research and resolve issues and inquiries regarding collection payments.	X
	6. Prepare and submit collection adjustments.	X
	7. Review and approve any collection adjustments		X
4.9	Statement Auditing (N.A. + Europe)
	1. Request statements from vendors.	X
	2. Research outstanding credits.	X
	3. Perform reclamation procedures for outstanding credits.	X
	4. Support post payment audit vendor.	X
4.11	Escheatment Function
	1. Research, take action upon, and/or escalate aged accounts payable transaction issues in preparation for escheat processing.	X
	2. Determine potential (e.g., unclaimed) property to be reported in accordance with Hercules policy.	X
	3. Research and determine property owner.	X
	4. Contact unclaimed property owners.	X
	5. Determine whether amounts due have been paid or whether unclaimed property can be returned to owner.	X
	6. Create and maintain a database of owners contact information.	X
	7. Determine legal escheat reporting requirements and deadlines for remitting unclaimed property.	X
	8. Prepare escheatment schedules.	X
	9. Prepare a reconciliation of the unclaimed property liability account to determine adjustments needed to the account.	X
	Hercules will approve the checks to be escheated. Hercules will file the escheatment return.		X
4.12	Accounts Payable Weekly Cash Forecast (N.A. + Europe)
	1. Notify treasury of any large (e.g. greater than 500,000) unusual payments.	X

5.0 EUROPEAN AP PROCESSING

5.1	VAT and Other Special Processes
	1. Accounts payable to identify the need of a new VAT tax rate. This is then forwarded to the VAT/Intrastat group to follow-up (e.g., setup and enter VAT ID (if new vendor) and VAT tax rates).	X
	2. Follow EU Directive and other applicable Law for invoice requirements provided by VAT/Intrastat group (for applicable countries).	X

6.0 REPORTING AND RECORDS RETENTION: (N.A. + EUROPE)

6.1	Reporting
	1. Perform standard reporting requirements as defined in Attachment A.	X
	2. Provide ad hoc reports as requested by Hercules.	X
6.2	Records Retention
	1. Retain source documentation and reports: hard copies, CD ROM, Fiche, Film, and Imaging, in accordance with Hercules policies and procedures.	X
	2. Provide scanned document images for source documentation through an electronic imaging system.	X
	3. Retrieve archived reports and documentation as requested by Hercules.	X
	4. Maintain documentation in accordance with Hercules policies and procedures.	X
	5. Dispose of documentation in accordance with Hercules policies and procedures.	X

7.0	PERFORMANCE MEASUREMENT & EFFECTIVENESS (N.A. + EUROPE)

		1. Provide consistent metrics and AP process performance information as defined in this document, including reports identified in Schedule R.	X
		2. Provide explanations relative to performance levels, root-cause analyses, corrective measures planned, etc. as requested by HERCULES.	X
		3. Monitor and report performance and service levels, using agreed-upon measurement processes, tools, and methodologies.	X
		4. Review existing processes to evaluate accounts payable process performance and work with Hercules management to develop action plans to improve upon current performance levels.	X

8.0	MONITOR / COMMUNICATE SERVICE COMPLIANCE (N.A. + EUROPE)

		1. Continuously audit the adherence to Hercules accounts payable accounting rules and requirements.	X
		2. Facilitate Hercules audit of accounts payable processes, including compliance with defined rules and requirements.	X

HERCULES

Schedule E.4A

Order to Invoice (OTI)

North America

Table of Contents

I. INTRODUCTION 3

II. GENERAL REQUIREMENTS 3

III. AQUALON DIVISION 4

1.0 DOMESTIC ORDER ENTRY ( Customer Already Exists)4

2.0 EXPORT ORDER ENTRY8

3.0 INTER-COMPANY ORDER ENTRY12

4.0 INVOICING13

5.0 ELECTRONIC DATA INTERCHANGE - EDI17

6.0 PRICING18

7.0 TRANSPORTATION20

8.0 CUSTOMER COMPLAINT PROCESS22

9.0 CUSTOMER MASTER DATA23

10.0 HANDLING OF SMALL ACCOUNTS (Inside Sales)24

III. PTV Division 24

1.0 THIRD PARTY ORDERS24

2.0 CONTRACT ADMINISTRATION25

3.0 Competitive Prices (CPI - off list pricing)25

4.0 Payment of Land and Sea Bills26

5.0 Deferred Billing26

IV. REPORTING AND RECORDS RETENTION 26

V. PERFORMANCE MEASUREMENT AND EFFECTIVENESS 27

VI. MONITOR AND COMMUNICATE SERVICE COMPLIANCE 27

I. INTRODUCTION

This Schedule sets forth the North America Order To Invoice (OTI) Business Process Services that the Supplier will provide, as of the Commencement Date unless otherwise specified. The Statements of Work defined in this Schedule were developed to include all in-scope activities performed by affected employees within the HERCULES Order To Invoice (OTI) function for North America Aqualon and PTV. The Supplier will be responsible for all functions performed by employees affected by the proposed outsourcing of services.

II. GENERAL REQUIREMENTS

The Suppliers responsibilities include, but are not limited to the following:

1. Understand all HERCULES OTI policies and how current processes and systems map against those policies. Additionally, the Supplier will communicate any issues back to HERCULES and retain the responsibility of resolving all issues.

2. Provide input to HERCULES on policy change opportunities, proposed policy changes, industry direction, and how the policy changes will impact then-current work processes and Systems.

3. Ensure that existing and new HERCULES policies are incorporated into the systems and processes.

4. Ensure that HERCULES established policy guidelines are followed and report policy exceptions promptly to HERCULES.

5. Identify and resolve issues related to OTI work processes. Provide guidance and advice to HERCULES on then-current work process design and potential implications.

6. Comply with HERCULES processes and Systems security and access policies.

7. Drive continuous improvement of the work processes, documentation and Services.

8. Support HERCULES internal audit and Third-Party audit to ensure compliance with existing HERCULES and US GAAP rules and requirements in accordance with Section XX of the Agreement.

9. Prepare and maintain the process and testing documentation and testing required by the Sarbanes-Oxley Act 2002, (US Centric) in accordance with the methodologies established by HERCULES.

10. Provide support processing capabilities in the following languages: English, French, German, Spanish, Chinese, etc.

11. Provide support processing capabilities for the following hours of operations: XX to XX

12. Provide support process capabilities in accordance with the monthly closing schedule. (for each country included in the scope. (For example, USA, UK, Central Europe, Australia, Asia Pacific)

III. AQUALON DIVISION

1.0 DOMESTIC ORDER ENTRY ( Customer Already Exists)

The Suppliers responsibilities include, but are not limited to the following:

1. Receive order via fax, EDI, phone, mail, electronic order (XIGN) or EZ order

2. Review order for completeness: P.O. Number, product, quantity, requested delivery date, ship to

3. Calculate correct requested ship date using Odyssey webtool

4. Verify if lead time policy is being adhered to; if not obtain approval from Supply Chain Manager

5. Pull applicable zpro

6. Enter order into SAP

7. Print order acknowledgement

8. Review order details including verification of price

9. Mail order acknowledgement

1.1 Consignment Accounts

The Suppliers responsibilities include, but are not limited to the following:

1. Receive order

2. Verify if customer is a consignment account

3. Review order for completeness: P. O. number, product, quantity, requested delivery date

4. Calculate requested ship date using Odyssey webtool

5. Pull zpro

6. Verify if lead time policy is being adhered to, if not obtain approval from Supply Chain Manager

7. Enter replenishment order (KB) into SAP

8. Print order acknowledgement

9. Review order details

10. Mail order acknowledgement

1.2 Distributors (U.S. and Canada)

The Suppliers responsibilities include, but are not limited to the following:

1. Receive order

2. Verify there is a signed legal agreement in place

3. Review order for completeness; P. O. number, requested delivery date, product, quantity, ship to

4. Calculate requested ship date using Odyssey webtool

5. Verify if lead time policy is being adhered to; if not obtain approval from Supply Chain Manager

6. Verify quantity ordered meets guidelines in agreement

7. Pull zpro

8. Enter order into SAP; bill block order

9. Print order acknowledgement

10. Review order details; verify discount rate and all pricing

11. Mail order acknowledgement

1.3 Preship Sample Process

(Samples sent to Customer for testing; track through SAP)

The Suppliers responsibilities include, but are not limited to the following:

1. Receive order

2. Review CSR Header Notes for pertinent details

3. Request made to send pre-ship sample prior to shipment

4. Verify request with Supply Chain Manager

5. Receive approval to do pre-ship

6. Advise plant

7. Ship material for approval by customer

1.4 Co-ship Process

(Samples, separately packaged and sent to Customer together with shipment of product for Customer Q.A. testing)

The Suppliers responsibilities include, but are not limited to the following:

1. Receive order

2. Review CSR Header Notes for pertinent details

3. Request made to ship co-ship with order at time of shipment

4. Verify request with Supply Chain Manager

5. Receive approval to co-ship material

6. Contact plant/warehouse and advise of requirement

7. Enter instruction on order to ship 1 pound co-ship with shipment

1.5 Expedited Freight - Hercules Pays Freight

The Suppliers responsibilities include, but are not limited to the following:

1. Receive order

2. Request made to expedite order

3. Obtain approval from Supply Chain Manager

4. Contact Odyssey and plant with requirement

5. Place order

1.6 Air Freight Policy - Hercules Pays Freight

The Suppliers responsibilities include, but are not limited to the following:

1. Receive order

2. Request made to send order via air freight

3. Obtain approval from Supply Chain Manager

4. Contact plant with requirement

5. Place order

1.7 No Charge Order Policy

The Suppliers responsibilities include, but are not limited to the following:

1. Receive order

2. Request made to ship order at no charge

3. Obtain approval from Supply Chain Manager

4. Calculate requested ship date using Odyssey webtool

5. Enter No Charge Order type (TANN order) into SAP

1.8 Processing of Returns

The Suppliers responsibilities include, but are not limited to the following:

1. Receive notification from customer to return material

2. Determine if an approved complaint report is available; if so

advise customer to return material in accordance with complaint report

3. Enter return order in SAP notating product and quantity to be returned

4. Output return order to receiving location (plant or warehouse)

5. Receiving location physically receives the material

6. Receiving location enters return delivery and post goods issue into SAP

7. Wilmington reviews approved complaint report against the return delivery

8. Wilmington releases the credit invoice to the customer

9. Print the invoice

10. Review the invoice for accuracy

11. Mail the invoice when required

2.0 EXPORT ORDER ENTRY

The Suppliers responsibilities include, but are not limited to the following:

1. Receive order via e-mail, fax or EZ order

2. Review order for completeness; P. O. number, product, quantity, price, requested delivery date, ship to, INCO terms

3. Determine if letter of credit will be used

4. Determine if trading company will be utilized

5. Calculate requested shipping date using Odyssey web tool

6. Validate order quantity if containerized

7. Validate if shipping full pallets

8. Pull zpro

9. Enter order into SAP; manually enter price

10. Print order acknowledgement

11. Review order details including price verification

12. Courier order acknowledgement weekly to agent servicing customer

2.1 Shipment from Tianpu, China

The Suppliers responsibilities include, but are not limited to the following:

1. Review order

2. Review order for completeness: P. O. number, product, quantity, price, requested delivery date, how to consign ocean bills of lading, INCO terms

3. E-mail order details to Hercules Singapore office

4. Facilitation of order handled between Hercules Singapore and Tianpu, China plant

2.2 Shipments to Lenosur Warehouse in Uruguay

The Suppliers responsibilities include, but are not limited to the following:

1. Receive order

2. Verify signed legal agreement in place

3. Review order for completeness: product, quantity, requested delivery date

4. Calculate requested shipping date using Odyssey webtool

5. Pull zpro

6. Enter order into SAP

7. Print order acknowledgement

8. Review order details

9. Courier order acknowledgement

2.3 Shipment from Europe to South America

The Suppliers responsibilities include, but are not limited to the following:

1. Receive order

2. Review order for completeness: P. O. number, product, quantity, requested delivery date, price, INCO terms

3. Pull zpro

4. Enter order into SAP selling to customer

5. System auto creates purchase order to Hercules Europe

6. Print order acknowledgement

7. Review order details

8. Courier order acknowledgement

2.4 Customer Handling Orders

(Sold to/ship to: U.S. customer but material is exported by customer)

The Suppliers responsibilities include, but are not limited to the following:

1. Receive order

2. Review for completeness: P. O. number, product quantity, ship to, INCO terms, end use, country ultimately being exported to, pricing

3. Calculate requested ship date using Odyssey webtool

4. Verify lead time policy is being adhered to; if not contact Supply Chain Manager

5. Pull zpro

6. Enter order into SAP

7. Insert special clausing to avoid fines and penalties

8. Print order acknowledgement

9. Review order acknowledgement

10. Mail order acknowledgement to customer

2.5 Preparation of Canada Customs Papers for Shipment out of U.S. Field Warehouses

The Suppliers responsibilities include, but are not limited to the following:

1. Receive order

2. Review order for completeness: P. O. number, product, quantity, ship to, INCO terms, pricing

3. Pull zpro

4. Enter order into SAP

5. Advise warehouse staff of pending order

6. Advise warehouse staff how to fill out paperwork

7. Print order acknowledgement

8. Review order details

9. Courier order acknowledgement to customer

2.6 Odyssey Guidelines for Handling Export Orders

The Suppliers responsibilities include, but are not limited to the following:

1. Provide data to Odyssey that Product is available to ship

2. Output planned ship date message to Odyssey

3. Issuance of booking from Odyssey received within 48 hours

4. Shipment made from shipping point in conjunction with booking (if from warehouses, CSR coordinates notification for accuracy review, etc)

5. Sailing confirmation received from Odyssey within 48 hours after vessel sailing

6. Receive copies of all shipping documents for accuracy review

3.0 INTER-COMPANY ORDER ENTRY

The Suppliers responsibilities include, but are not limited to the following:

1. Receive order

2. Review order for completeness: P. O. number, product, quantity, requested delivery date, ship to

3. Calculate requested ship date using Odyssey webtool

4. Verify if lead time policy is being adhered to; if not obtain approval from Supply Chain Manager

5. Pull applicable zpro

6. Enter order into SAP

7. Verify P.O. number and sales order are linked

8. Print order acknowledgement

9. Review order acknowledgement

3.1 Import Material for U.S. Accounts

The Suppliers responsibilities include, but are not limited to the following:

1. Receive order

2. Review order for completeness: P. O. number, product, quantity, requested delivery, INCO terms, special requests, U.S. port of entry, pricing

3. Pull zpro

4. Enter order into SAP; bill block order

5. Auto create a purchase order to Hercules Europe

6. Verify sales order and purchase order are linked

7. Print order acknowledgement

8. Review order details

9. Mail order acknowledgement to customer

4.0 INVOICING

The Suppliers responsibilities include, but are not limited to the following:

4.1 Consignment

1. Receive monthly usage report

2. Enter Consignment (“KE”) order into SAP

3. Allocate specific lots used in SAP

4. Enter PGI (Post Goods Issue) - Allocation Specialist

5. Print invoice

6. Review invoice

7. Mail invoice to customer

4.2 Distributor Discounts

The Suppliers responsibilities include, but are not limited to the following:

1. Enter PGI

2. Review invoice details in SAP

3. Remove bill block

4. Print invoice

5. Review invoice

6. Mail invoice

4.3 Orders Shipped/Not Billed

The Suppliers responsibilities include, but are not limited to the following:

1. Review SAP report (RV60SBT1)

2. Investigate each order on report

3. Contact respective customer service representative to take action needed to finalize invoice

4. Print invoice

4.4 Orders Billed not Released to Accounting

The Suppliers responsibilities include, but are not limited to the following:

1. Review SAP report (AQSD01W3)

2. Investigate each order on report

3. Contact respective customer service representative to take action needed to finalize invoice

4. Print invoice

5. Mail invoice

4.5 Imported Materials

The Suppliers responsibilities include, but are not limited to the following:

1. Contact Odyssey to determine if material has cleared customs

2. Remove bill block

3. Print invoice

4. Review invoice

5. Mail invoice

4.6 Agent Commissions (Create Master Data File)

The Suppliers responsibilities include, but are not limited to the following:

1. Legal agreement in place, provides products covered, rate % of commission to be issued and on what basis

2. Create agent number in SAP

3. Enter % discount in pricing conditions

4. Partner agent number to respective zpro

4.7 Shipments from Lenosur Warehouse

The Suppliers responsibilities include, but are not limited to the following:

1. Receive B/L from warehouse

2. Enter PGI (Post Goods Issue) into SAP

3. Print Invoice

4. Review Invoice

5. Courier invoice to customer

4.8 Intentionally Blank

4.9 Draft Preparation for Shipments out of Europe to Latin America

The Suppliers responsibilities include, but are not limited to the following:

1. Receive documents from Europe

2. Prepare draft

3. Mail draft and documents to customer

4.10 Manual Invoice - Credit Memo Issuance

The Suppliers responsibilities include, but are not limited to the following:

1. Review request for credit memo to be issued

2. Review all documentation for approvals

3. Enter credit requests into SAP

4. Approve credit request in SAP

5. Print credit invoice

6. Review credit invoice

7. Mail credit invoice to customer

4.11 Evaluated Receipt Settlement

The Suppliers responsibilities include, but are not limited to the following:

1. Receive request from customer to pay via electronic receipt settlement

2. Advise credit representative

4.12 Rebates

The Suppliers responsibilities include, but are not limited to the following:

1. Receive RRF (Rebate Request Form) from sales representative via email

2. Request sales and business management approval

3. Create rebate in SAP

4. Created after beginning validity, do accruals for time between beginning validity and rebate creating

5. If rebate is not direct (through distributor, agent, or entity not on SAP), do monthly accruals

6. After ending validity, check rebate and request agreement of sales representative to settle rebate for specific amount.

7. Upon agreement of sales representative, request approval of sales and business management to settle rebate

8. Settle rebate and send rebate credit to customer or request Credit to send wire transfer or check

9. Price supports are not rebates, but are done utilizing the rebate process. They are simpler as there is no RRF and price supports are created and settled together. Below is the price support process.

a. Receive sales and business management approval to pay price support monthly for entire year

b. Monthly receive distributor request for price support, for sales for preceding month, with sales representative approval

c. By 28^th of each month, create and settle price support, mail price support credit invoices to distributors

4.13 Update and Maintain Tax Code by Customer & Sales Record for GST/VAT

Tasks to include; for European version

The Suppliers responsibilities include, but are not limited to the following:

4.14 Review / Reconcile Printed Order Acknowledgement / Invoices Against SAP Report

The Suppliers responsibilities include, but are not limited to the following:

1. Execute SAP report on a daily basis

2. Verify receipt of invoices/order acknowledgement against report

3. Mail Invoices

5.0 ELECTRONIC DATA INTERCHANGE - EDI

The Suppliers responsibilities include, but are not limited to the following:

1. Receive request from customer

2. Contact IT liaison

3. Establish criteria in SAP

4. Receive order thru EDI

5. Run daily report for orders with delivery block

6. Review Orders

7. Remove delivery block

8. Print order acknowledge

9. Review order acknowledgement

10. Mail order acknowledgement

11. Billing goes out through EDI along with hard copy mailed to customer

6.0 PRICING

6.1 List Pricing

The Suppliers responsibilities include, but are not limited to the following:

1. Receive new price lists from Industry Manager

2. Enter new pricing directly into SAP

3. Validate what has been entered into SAP against new price lists

6.2 Competitive Prices (CPI - off list pricing)

The Suppliers responsibilities include, but are not limited to the following:

1. Receive CPI from sales via lotus notes

2. Enter CPI directly into SAP

3. One (1) or two (2) approvals are required depending on the business for price to be accepted in the system

4. Notify Hercules when CPI’s are available for approval

5. Review exception report to monitor timeliness of approval process

6. Escalate delinquent approvals

7. Notify Customer Service to update new prices on existing and new orders

8. Update and maintain non-off list pricing spreadsheets

9. Interfaces with sales support to resolve any pricing issues

6.3 Transfer Pricing

The Suppliers responsibilities include, but are not limited to the following:

1. Receive order

2. Calculation done at time of order entry using Excel spreadsheet

3. Enter calculated price into SAP sales order

6.4 Distributor Price Supports

(Currently 4 Distributors)

The Suppliers responsibilities include, but are not limited to the following:

1. Receive approved documentation to support request for credit

2. Enter credit request into SAP

3. Review and approve credit request

4. Print credit invoice

5. Mail credit invoice

6.5 Special Pricing - Latin America/Far East

The Suppliers responsibilities include, but are not limited to the following:

1. Price lists by country are prepared by local Aqualon representatives

2. Price lists are forwarded to Industry Managers for approval

3. Once approved, Industry Manager forwards approved price lists to customer service representative

4. No information is entered into SAP

5. Export CSR’s receive copies of approved country pricing

6.6 Price Over-ride Process

The Suppliers responsibilities include, but are not limited to the following:

1. Orders on books, already priced, confirmed to customer for future shipment

2. New list prices received from Industry Manager

3. Enter new pricing into SAP

4. Advise all CSRs to go into SAP and bill block all orders that have pending price increases

5. Review each order individually to determine who receives new pricing and who does not

6. Remove bill block as required

7. Over-ride prices where necessary and provide reason

8. Print invoice

9. Review Invoice

10. Mail invoice

7.0 TRANSPORTATION

7.1 Tracking/Tracing Shipments

The Suppliers responsibilities include, but are not limited to the following:

1. Domestic shipments via truck or rail, Customer Service Representative (CSR) contact Odyssey Logistics to track. If urgent, CSR uses bill of lading number and truck lines to track using truck lines website in internet or a phone call is made

2. Domestic/Export shipments using UPS or Federal Express tracking done using carriers website via internet

3. Export ocean, CSR contacts Odyssey International

4. Export air, CSR contacts EGL

5. Import orders, CSR contacts Odyssey Logistics import group

6. Europe shipments to Latin America, CSR contact Europe CSR and Europe CSR gets information from DeRijke

7.2 Expediting Process-Approval

The Suppliers responsibilities include, but are not limited to the following:

1. If customer is paying for freight costs no approval is necessary

2. If Hercules is to pay the freight costs CSR obtains freight costs and gets approval from industry manager

7.3 Payment of Land and Sea Bills

The Suppliers responsibilities include, but are not limited to the following:

1. Export air, EGL pays carrier and sends freight bills to CSR. CSR codes bills and sends to AP department for payment to EGL

2. Investigates freight bills from Odyssey which require review before payment.

3. Determine appropriate coding for freight invoices and forwards to AP department for payment

4. Accrue freight bills as required.

5. Mexico, BDP Interamerica pays carrier. BDP bills Hercules, sends bill to CSR to code and send to AP Department

7.4 How to Request a Freight Quote

The Suppliers responsibilities include, but are not limited to the following:

1. Domestic/Canada/Mexico, truck and rail request done within Odyssey Logistics website

2. Domestic/Canada/Mexico, Federal Express/UPS, CSR contacts carrier for quote

3. Export ocean, CSR requests quote via e-mail to Odyssey International

4. Export air, CSR requests quote from Odyssey Logistics, Pat Ward

7.5 Interface with Odyssey Land and Sea

The Suppliers responsibilities include, but are not limited to the following:

1. Domestic/Canada truck and rail, CSR contact Odyssey Logistics with any problems, trucking/delivery issues or if expedited freight is needed

2. Export ocean, CSR sends orders via SAP printer to Odyssey International

3. Odyssey sends booking details to CSR, plant or warehouse and overseas agent or sales office

4. Odyssey sends delays/confirmation of sailings to CSR and overseas agent or sales office

5. Odyssey sends documents to overseas location as required and copy to CSR

6. Air shipment, CSR send order via fax to EGL

7. EGL (air forwarder) works with plant/warehouse for pickup instructions

8. EGL sends proposed/confirmed flight details to CSR and overseas agent or sales office

9. EGL sends documents via instructions on order to overseas locations

10. EGL sends copy of documents to CSR

11. Mexico, CSR sends copy of order to BDP via fax

12. CSR sends invoice to BDP Interamerica

13. BDP works with Mexico customer broker to clear goods at border

7.6 Interface with Eagle Global Logistics (EGL)-Air

The Suppliers responsibilities include, but are not limited to the following:

1. Fax SAP sales order to EGL

2. EGL contacts plant/warehouse for pickup instructions

3. EGL sends proposed/confirmed flight details to CSR and overseas agent

4. EGL sends documents via instructions on order

5. EGL sends copy of documents to CSR

7.7 Interface with BDP Interamerica-Mexico

The Suppliers responsibilities include, but are not limited to the following:

1. CSR sends copy of order to BDP via fax

2. CSR sends invoice to BDP via fax

3. BDP coordinates with Mexican broker to clear goods at border

8.0 CUSTOMER COMPLAINT PROCESS

8.1 Preparation of a Customer Complaint/Resolution

The Suppliers responsibilities include, but are not limited to the following:

1. CSR enters complaint into lotus notes complaint database

2. If return is required, CSR enters return order into SAP

3. If material is to be replaced, CSR enters new order in SAP to be sent to customer

4. If material is to be destroyed, CSR advises customer once approved CCA is approved in database by Industry Manager

8.2 How to Handle Damaged and Carrier Complaints

The Suppliers responsibilities include, but are not limited to the following:

1. CSR enters complaint into lotus notes complaint database

2. If return is required CSR enters return order into SAP

3. If material is to be replaced, CSR enters new order in SAP to be sent to customer

4. If material is to be destroyed, CSR advises customer once approved CCA is approved in database by Industry Manager

8.3 How to File a Claim with a Carrier

The Suppliers responsibilities include, but are not limited to the following:

1. Claims are filed by Customer Service Manager based on outcome of complaint entered into complaint database

9.0 CUSTOMER MASTER DATA

9.1 Request for Tax Exemption Certificate

The Suppliers responsibilities include, but are not limited to the following:

1. Determine if a new customer is tax exempt

2. Set master data at -0- “tax exempt”

3. Send letter to the customer requesting their tax exemption certificate

4. Receive signed tax exemption certificate from customer

5. File in customer file

9.2 Process for Creating a Sold to/Ship to

The Suppliers responsibilities include, but are not limited to the following:

1. Receive an order from a new customer with sold to and ship to information

2. Create the address(s) in SAP master data using the information provided by the customer filling in the data on the appropriate screens

3. Partner sold to, ship to and payer numbers to the sold to party in SAP

9.3 Salesman Number Changes

The Suppliers responsibilities include, but are not limited to the following:

1. Receive new salesman assignments

2. Partner new salesman number to “Customer Sold To”

3. Update appropriate ZPRO(s) at the item partner level and makes the change

10.0 HANDLING OF SMALL ACCOUNTS (Inside Sales)

10.1 Inside Sales

The Suppliers responsibilities include, but are not limited to the following:

1. Receive all incoming calls requesting technical information, product information and pricing requests from small accounts not assigned to a field salesperson

2. Resolve all issues surrounding their account base

III. PTV Division

1.0 THIRD PARTY ORDERS

The Suppliers responsibilities include, but are not limited to the following:

1. Post Goods Receipts for third party purchase orders

2. Investigate IDOC failures with GE

3. Follow up with third party vendors on missing Bills of Lading

4. Monitor invoices which fail to release to accounting

5. Check on suspect bills of lading

6. Processes “ Manual Invoice Maintenance “ invoices

7. Obtain Proof of Delivery from carriers

8. Generates late invoicing report and follows up with vendors on any delayed shipment items

9. Approve rebate spreadsheets

10. Enter rebates on SAP on quarterly basis

2.0 CONTRACT ADMINISTRATION

The Suppliers responsibilities include, but are not limited to the following:

1. Receive reports from sales for monthly billing.

2. Create debit invoices for contracts

3 Receive inventory documentation from sales on a daily basis

4. Process inventory adjustments for contract products

5. Receives approvals for any changes to be preformed on contracts.

6. Perform additions, modifications, deletions on contracts on a daily basis

7. Interface with credit to resolve issues

8. Interacts with Sales Reps for inventory and pricing issues

3.0 Competitive Prices (CPI - off list pricing)

The Suppliers responsibilities include, but are not limited to the following:

1. Receive CPI from sales via lotus notes

2. Enter CPI directly into SAP

3. One (1) or two (2) approvals are required depending on the business for price to be accepted in the system

4. Notify Hercules when CPI’s are available for approval

5. Review exception report to monitor timeliness of approval process

6. Escalate delinquent approvals

7. Notify Customer Service to update new prices on existing and new orders

8. Update and maintain non-off list pricing spreadsheets

9. Interfaces with sales support to resolve any pricing issues

4.0 Payment of Land and Sea Bills

The Suppliers responsibilities include, but are not limited to the following:

1. Export air, EGL pays carrier and sends freight bills to CSR. CSR codes bills and sends to AP department for payment to EGL

2. Investigates freight bills from Odyssey which require review before payment.

3. Determine appropriate coding for freight invoices and forwards to AP department for payment

4. Accrue freight bills as required.

5. Mexico, BDP Interamerica pays carrier. BDP bills Hercules, sends bill to CSR to code and send to AP Department

5.0 Deferred Billing

The Suppliers responsibilities include, but are not limited to the following:

Deferred Billing

IV. REPORTING AND RECORDS RETENTION

1. REPORTING

The Suppliers responsibilities include, but are not limited to the following:

1. Perform standard reporting requirements as defined

2. Provide Ad Hoc reports as requested

2. Record Retention

The Suppliers responsibilities include, but are not limited to the following:

1. Retain source documentation and reports

2. Provide scanned document images for source documentation and reports - hard copies, CD Rom, Fiche, Film and imaging - in accordance with Hercules policies and procedures

3. Retrieve archived reports and documentation as requested by Hercules

4. Maintain documentation in accordance with Hercules policies and procedures

5. Dispose of documentation in accordance with Hercules policies and procedures

V. PERFORMANCE MEASUREMENT AND EFFECTIVENESS

The Suppliers responsibilities include, but are not limited to the following:

1. Provide consistent metrics and process performance information as defined in this document

2. Provide explanations relative to performance levels, root-cause analyses, corrective measures planned, etc. as requested by Hercules

3. Monitor and report performance and service levels, using agreed upon measurement processes, tools and methodologies

4. Review existing processes to evaluate process performance and work with Hercules management to develop action plans to improve upon current performance levels

VI. MONITOR AND COMMUNICATE SERVICE COMPLIANCE

The Suppliers responsibilities include, but are not limited to the following:

1. Continuously audit adherence to Hercules accounting rules and requirements

2. Facilitate Hercules audit of processes, including compliance with defined rules and requirements

HERCULES

Schedule E.4B

Order to Invoice (OTI)

Europe

Aqualon

I. INTRODUCTION 4

II. GENERAL REQUIREMENTS 4

III AQUALON DIVISION - Customer Care Europe 5

I. Strategic Accounts 5

1.1. EU ORDER ENTRY - Direct order process (Customer Already Exists / Masterdata / Zpro correct )5

1.2 EXPORT ORDER ENTRY Strategic Accounts order process via Singapore office6

1.3 EXPORT ORDER ENTRY Strategic Accounts Order process for non EU locations (and not via S’pore)8

1.4 EXPORT ORDER ENTRY Strategic Accounts 10

Orders via Moscow office 10

1.5 Shipment from Tianpu, China - Strategic Accounts11

1.6 Consignment Accounts - Strategic Accounts12

1.7 EU ORDER ENTRY13

Handling of strategic accounts via agents (EU)13

1.8 Handling of strategic accounts via agents (NON EU)15

1.9. Handling of orders strategic accounts via local warehouses Europe + STO process17

1.10 Handling of 3^rd party orders strategic accounts Europe19

1.11 Pricing Strategic Accounts EMA21

Competitive Prices (CPI - off list pricing)21

Price Over-ride Process22

II Handling of agents / distributor orders23

2.1 Handling of agents / distributor orders (EU)23

2.2 Export Order Entry Distributors/Agents via Singapore Office

Same steps as handling of strategic accounts via Singapore office23

2.3 Handling of agents / distributor orders (Non EU)23

2.4 Handling of agents / distributor orders via Moscow office24

2.5 Handling of agents / distributor Tianpu24

2.8 Pricing Agents/Distributors

Current process Customer Service (pricing project in process)25

Pricing

2.9 Price Over-ride Process25

III Handling of other direct accounts orders25

4.1 Orders via Singapore office26

4.3. Intercie orders Wilmington - Shipment from Europe to South America, or USA26

4.4. Pricing28

VI Other generic Customer Service processes34

1. Preship Sample Process, Inspections , Import licenses34

2. Expedited Freight - Hercules Pays Freight34

3. Air Freight Policy - Hercules Pays Freight35

4. No Charge Order Policy35

5. Orders Shipped/Not Billed36

6. Orders Billed not Released to Accounting36

7. Manual Invoice - Credit Memo Issuance36

8. How to Request a Freight Quote / leadtime37

9. Customer Complaint Process 37

(present European process - adjustments in progress) 37

A. Preparation of a Customer Complaint/Resolution 37

B. How to Handle Damaged and Carrier Complaints37

C. Processing of Returns (not only for complaints)38

VII. CUSTOMER MASTER DATA

All masterdata changes are archived in file for SOX compliance39

A. Request for Tax Exemption Certificate39

B. Update and Maintain Tax Code by Customer & Sales Record for GST/VAT39

C. Agent Commissions (Create Master Data File)39

D. Process for Creating a Sold to/Ship to39

E. Process for Creating / adjusting a payment condition in SAP40

F. Salesman Number Changes40

G. IPC Changes40

VIII REBATE PROCESS41

X REPORTING AND RECORDS RETENTION

1.REPORTING42

2.Record Retention42

XI PERFORMANCE MEASUREMENT AND EFFECTIVENESS

XII MONITOR AND COMMUNICATE SERVICE COMPLIANCE 43

I. INTRODUCTION

This Schedule sets forth the North America Order To Invoice (OTI) Business Process Services that the Supplier will provide, as of the Commencement Date unless otherwise specified. The Statements of Work defined in this Schedule were developed to include all in-scope activities performed by affected employees within the HERCULES Order To Invoice (OTI) function for Aqualon Europe. The Supplier will be responsible for all functions performed by employees affected by the proposed outsourcing of services.

II. GENERAL REQUIREMENTS

The Supplier’s responsibilities include, but are not limited to the following:

2. Provide input to HERCULES on policy change opportunities, proposed policy changes, industry direction, and how the policy changes will impact then-current work processes and Systems.

3. Ensure that existing and new HERCULES policies are incorporated into the systems and processes.

4. Ensure that HERCULES established policy guidelines are followed and report policy exceptions promptly to HERCULES.

5. Identify and resolve issues related to OTI work processes. Provide guidance and advice to HERCULES on then-current work process design and potential implications.

6. Comply with HERCULES processes and Systems security and access policies.

7. Drive continuous improvement of the work processes, documentation and Services.

8. Support HERCULES internal audit and Third-Party audit to ensure compliance with existing HERCULES and US GAAP rules and requirements in accordance with the Agreement.

9. Prepare and maintain the process and testing documentation and testing required by the Sarbanes-Oxley Act 2002, (US Centric) in accordance with the methodologies established by HERCULES.

10. Provide support processing capabilities in the following languages: English, French, German, Spanish, Chinese, Italian, Turkish, Russian, etc. [Note: This is deal specific and needs to be customized to the languages of the countries that are in scope.]

11. Provide support processing capabilities the hours of operations as determined during the Transition Period.

12. Provide support process capabilities in accordance with the monthly closing schedule. (for each country included in the scope. (For example, USA, UK, Central Europe, Australia, Asia Pacific)

III AQUALON DIVISION - Customer Care Europe

I. Strategic Accounts

1.1.	EU ORDER ENTRY - Direct order process

(Customer Already Exists / Masterdata / Zpro correct )

The Supplier’s responsibilities include, but are not limited to the following:

1. Receive order via fax, phone, mail

Use logistic definition procedure for steps 2, 3, 4

2. Review order for completeness: P.O. Number, product, quantity, requested delivery date, ship to, price, inco term, payment condition, sold to, SCR, etc

3. Calculate correct requested ship date using DeRijke leadtimes + internal order handling lead - time

4. Verify if lead time policy is being adhered to; if not obtain approval from Demand Mngt Team

5. Pull applicable zpro

6. Enter order into SAP

7. Print order acknowledgement

8. Review order details including verification of price

9. Have order reviewed on 11 point check by supervisor

10. Mail order acknowledgement / communicate expected availability if possible with availability information received from Mat. Mngt

11 If delivery or psdn information from material management not yet received mail order acknowledgement. Inform customer in 2^nd step when material is expected to be available - complete order status report with order status remarks

12. In case of non / late availability follow order escalation process / expedited freight policy subject to (respect) of agreed upon - leadtime.

13 a - All Material allocated follow step 14

If Partial allocation

a. inform stakeholders (Sales / Customer)

b. subject to feedback arrange partial shipment, wait for complete order or start escalation process

c. follow steps 14 a + b

14. Material allocated in full

a. send edi to DeRijke warehouse or Alizay + seperate edi to de rijke forwarding

b Certificates of Analysis printed by MM and dropped on CS printer(s).

15 Confirmation from DeRijke warehouse / Alizay material has been loaded

16. PGI done by CSR for derijke warehouse - for alizay shipments done by warehouse themselves

17. Invoicing and release invoice to accounting

18. Send invoice as hard copy to customer

or electronic invoicing for specific accounts

deferred billing for number of accounts

19 . Complete and archive file

1.2	EXPORT ORDER ENTRY Strategic Accounts

order process via Singapore office

The Supplier’s responsibilities include, but are not limited to the following:

1. Receive order via SAP (processed by Singapore office) on local CS printer

2. Check payment condition

Where applicable (LC,s) check content and arrange amendments with Deutsche Bank and customer (bank). Upon receipt of complete / approved LC (from ESSC) allocation process will start (step 7).

3.. Upon receipt verify if lead time policy is being adhered to; if not obtain approval from Demand Mngt Team.

4. Order is recorded for SOX purposes (VBAK completeness check)

5. Order dropped on MM printer

6. Send PSDN to Singapore office

7 If delivery or psdn information from material management not yet received mail order acknowledgement. Inform S’pore in 2^nd step when material is expected to be available - complete order status report with order status remarks

8. In case of non / late availability follow order escalation process / expedited freight policy subject to (respect) of agreed upon - leadtime.

9 a - All Material allocated follow step 10

Partial allocation

a. inform internal stakeholders (sinpapore office)

b. subject to feedback arrange partial shipment, wait for complete order or start escalation process

c. follow steps listed under 10

10 Material allocated

a. drop delivery at S’pore office

b. send booking request by email to DeRijke

c. booking confirmation received

- if not compliant revert with request for improved booking

d. send edi to DeRijke warehouse or Alizay + seperate edi to de rijke forwarding

e Certificates of Analysis printed by MM and dropped on CS printer(s).

11. Where applicable arrange inspection with inspection cie;s

12. Confirmation from DeRijke warehouse / Alizay material has been loaded

13. PGI done by CSR for derijke warehouse - for alizay shipments done by warehouse themselves

14. Invoicing and release invoice to accounting

15. As agreed during the Transition Period, prepare set of documents

Receipt BL

Check BL content (express / manual BL)

create direct collection by deutsche bank

prepare documents - certificates of origin, legalized invoices,

export licenses, inspection reports, insurance documents

send documents to customer / bank etc

scanned documents to Singapore office + copy to agent

16. As agreed during the Transition Period, send documents as hard copy to customer

17. Issue commission credit memo in case agent is involved

18. Complete and archive file

1.3	EXPORT ORDER ENTRY Strategic Accounts

Order process for non EU locations (and not via S’pore)

The Supplier’s responsibilities include, but are not limited to the following:

1. Receive order via mail, fax, phone

Use logistic definition procedure for steps 2, 3, 4

2. Review order for completeness: P.O. Number, product, quantity, requested delivery date, ship to, price, inco term, payment condition, sold to, SCR, etc

3. Check payment condition

Where applicable (LC,s) check content and arrange amendments with Deutsche Bank and customer (bank). Upon receipt of complete / approved LC (from ESSC) allocation process will start (step ).

4. Calculate correct requested ship date using DeRijke leadtimes + internal order handling lead - time

5. Verify if lead time policy is being adhered to; if not obtain approval from Demand Mngt Team

6. Pull applicable zpro

7. Enter order into SAP

8. Print order acknowledgement

9. Review order details including verification of price

10. Have order reviewed on 11 point check by supervisor

11. Mail order acknowledgement / communicate expected availability if possible with availability information received from Mat. Mngt

12 If delivery or psdn information from material management not yet received mail order acknowledgement. Inform customer in 2^nd step when material is expected to be available - complete order status report with order status remarks

13. In case of non / late availability follow order escalation process / expedited freight policy subject to (respect) of agreed upon - leadtime.

14 a - All Material allocated follow step 15

If Partial allocation

a. inform stakeholders (Sales/ Customer)

b. subject to feedback arrange partial shipment, wait for complete order or start escalation process

c. follow step 15

15. Material allocated

a. send booking request by email to DeRijke for sea shipments

b. booking confirmation received

- if not compliant revert with request for improved booking

c. send edi to DeRijke warehouse or Alizay + seperate edi to de rijke forwarding

d Certificates of Analysis printed by MM and dropped on CS printer(s).

Where applicable arrange inspection with inspection cie;s

16 Confirmation from DeRijke warehouse / Alizay material has been loaded

17. PGI done by CSR for derijke warehouse - for alizay shipments done by warehouse themselves

18. Invoicing and release invoice to accounting

19. As agreed during the Transition Period, prepare set of documents

Receipt BL

Check BL content (express / manual BL)

create direct collection by deutsche bank

prepare documents - certificates of origin, legalized invoices,

export licenses, inspection reports, insurance documents

send documents to customer / bank etc

20. As agreed during the Transition Period, send documents as hard copy to customer

21 . Complete and archive file

1.4 EXPORT ORDER ENTRY Strategic Accounts

Orders via Moscow office

The Supplier’s responsibilities include, but are not limited to the following:

1. Receive order via email

Use logistic definition procedure for steps 2, 3, 4

2. Review order for completeness: P.O. Number, product, quantity, requested delivery date, ship to, price, inco term, payment condition, sold to, SCR, etc

3.. Upon receipt verify if lead time policy is being adhered to; if not obtain approval from Demand Mngt Team.

4. Calculate correct requested ship date using DeRijke leadtimes + internal order handling lead - time (subject to Inco term)

5. Verify if lead time policy is being adhered to; if not obtain approval from Demand Mngt Team

6. Pull applicable zpro

7. Enter order into SAP

8. Print order acknowledgement

9. Review order details including verification of price

10. Have order reviewed on 11 point check by supervisor

11. Mail order acknowledgement / communicate expected availability if possible with availability information received from Mat. Mngt to Moscow office

12 If delivery or psdn information from material management not yet received mail order acknowledgement. Inform Moscow in 2^nd step when material is expected to be available - complete order status report with order status remarks

13. In case of non / late availability follow order escalation process / expedited freight policy subject to (respect) of agreed upon - leadtime.

14 a - All Material allocated follow step 15

If Partial allocation

a. inform stakeholders (Sales/ Moscow)

b. subject to feedback arrange partial shipment, wait for complete order or start escalation process

c. follow step 15

15. Material allocated

a. send booking request by email to DeRijke for sea shipments

b. booking confirmation received

- if not compliant revert with request for improved booking

c. send edi to DeRijke warehouse or Alizay + seperate edi to de rijke forwarding

d Certificates of Analysis printed by MM and dropped on CS printer(s).

16 Confirmation from DeRijke warehouse / Alizay material has been loaded

17. PGI done by CSR for derijke warehouse - for alizay shipments done by warehouse themselves

18. Invoicing and release invoice to accounting

19. As agreed during the Transition Period, prepare set of documents subject to Inco Term / Payment term

Receipt BL

Check BL content (express / manual BL)

create direct collection by deutsche bank

prepare documents - certificates of origin, EX1

export licenses, inspection reports, insurance documents

send documents to customer / bank etc

20. As agreed during the Transition Period, send documents as hard copy to customer

21 . Complete and archive file

1.5 Shipment from Tianpu, China - Strategic Accounts

The Supplier’s responsibilities include, but are not limited to the following:

1. Review order

2. Review order for completeness: P. O. number, product, quantity, price, requested delivery date, how to consign ocean bills of lading, INCO terms

3. E-mail order details to Hercules Singapore office

4. Facilitation of order handled between Hercules Singapore and Tianpu, China plant

5. If Inco term is DDU or DDP inform Hercules Material Management with request to place a SAP purchase order on Tianpu for physical shipment via Antwerp. Customer Service to place a SAP sales order (standard SAP process).

1.6 Consignment Accounts - Strategic Accounts

The Supplier’s responsibilities include, but are not limited to the following:

1. Receive order

2. Verify if customer is a consignment account

3. Review order for completeness: P. O. number, product, quantity, requested delivery date, price, inco term, payment condition, sold to, etc.

4. Calculate requested ship date using DeRijke lead times

5. Pull zpro

6. Verify if lead time policy is being adhered to, if not obtain approval from Demand Mngt Team

7. Enter replenishment order (KB) into SAP

8. Print order acknowledgement

9. Review order details

10.Have order reviewed on 11 point check by supervisor

11. Mail order acknowledgement / communicate expected availability

13. In case of non / late availability follow order escalation process / expedited freight policy subject to (respect) of agreed upon - leadtime.

14 a - All Material allocated follow step 15

If Partial allocation

a. inform stakeholders (Sales/ Customer)

b. subject to feedback arrange partial shipment, wait for complete order or start escalation process

c. follow step 15

15. Material allocated

a. send booking request by email to DeRijke for sea shipments

b. booking confirmation received

- if not compliant revert with request for improved booking

c. send edi to DeRijke warehouse or Alizay + seperate edi to de rijke forwarding

d Certificates of Analysis printed by MM and dropped on CS printer(s).

Where applicable arrange inspection with inspection cie;s

16 Confirmation from DeRijke warehouse / Alizay material has been loaded

17. PGI done by CSR for derijke warehouse - for alizay shipments done by warehouse themselves

18. Create KE order (consignment issue) to start invoicing process

Invoicing and release invoice to accounting subject to agreement with customer (monthend invoicing for example)

19. Send invoice as hard copy to customer

or electronic invoicing for specific accounts

20. Issue commission credit memo in case agent is involved

21. Reconciliation process SOX to ensure SAP inventory is in line with customer inventory (customer audits where need)

22. Complete and archive file

1.7	EU ORDER ENTRY

Handling of strategic accounts via agents (EU)

The Supplier’s responsibilities include, but are not limited to the following:

1. Receive order via fax, phone, mail from agent or customer

2. Check if agent is entitled to receive commission / handle account as per contract

Use logistic definition procedure for steps 2, 3, 4

3. Review order for completeness: P.O. Number, product, quantity, requested delivery date, ship to, price, inco term, payment condition, sold to, SCR, etc

4. Calculate correct requested ship date using DeRijke leadtimes + internal order handling lead - time

5. Verify if lead time policy is being adhered to; if not obtain approval from Demand Mngt Team

6. Pull applicable zpro

7. Enter order into SAP

8. Print order acknowledgement

9. Review order details including verification of price

10. Have order reviewed on 11 point check by supervisor

11. Mail order acknowledgement / communicate expected availability if possible with availability information received from Mat. Mngt to agent and / or customer

13. In case of non / late availability follow order escalation process / expedited freight policy subject to (respect) of agreed upon - leadtime.

14 a - All Material allocated follow step 15

If Partial allocation

a. inform stakeholders (Sales/ Customer)

b. subject to feedback arrange partial shipment, wait for complete order or start escalation process

c. follow steps 14 a + b

15. Material allocated

a. send edi to DeRijke warehouse or Alizay + seperate edi to de rijke forwarding

b Certificates of Analysis printed by MM and dropped on CS printer(s).

16 Confirmation from DeRijke warehouse / Alizay material has been loaded

17. PGI done by CSR for derijke warehouse - for alizay shipments done by warehouse themselves

18. Invoicing and release invoice to accounting

19. Send invoice as hard copy to customer or electronic invoicing for specific accounts deferred billing for number of accounts

20 Issue commission credit memo

21. Complete and archive file

1.8 Handling of strategic accounts via agents (NON EU)

The Supplier’s responsibilities include, but are not limited to the following:

1. Receive order via mail, fax from agent / customer

2. Check if agent is entitled to receive commission / handle account as per contract

Use logistic definition procedure for steps 2, 3, 4

3. Review order for completeness: P.O. Number, product, quantity, requested delivery date, ship to, price, inco term, payment condition, sold to, SCR, etc

4. Check payment condition

Where applicable (LC,s) check content and arrange amendments with Deutsche Bank and customer (bank). Upon receipt of complete / approved LC (from ESSC) allocation process will start (step ).

5. Calculate correct requested ship date using DeRijke leadtimes + internal order handling lead - time

6. Verify if lead time policy is being adhered to; if not obtain approval from Demand Mngt Team

7. Pull applicable zpro

8. Enter order into SAP

9. Print order acknowledgement

10. Review order details including verification of price

11. Have order reviewed on 11 point check by supervisor

12. Mail order acknowledgement / communicate expected availability if possible with availability information received from Mat. Mngt

13 If delivery or psdn information from material management not yet received mail order acknowledgement. Inform customer in 2^nd step when material is expected to be available - complete order status report with order status remarks

14. In case of non / late availability follow order escalation process / expedited freight policy subject to (respect) of agreed upon - leadtime.

15 a - All Material allocated follow step 16

If Partial allocation

a. inform stakeholders (Sales/ Customer)

b. subject to feedback arrange partial shipment, wait for complete order or start escalation process

c. follow step 16

16. Material allocated

a. send booking request by email to DeRijke for sea shipments

b. booking confirmation received

- if not compliant revert with request for improved booking

c. send edi to DeRijke warehouse or Alizay + seperate edi to de rijke forwarding

d Certificates of Analysis printed by MM and dropped on CS printer(s).

Where applicable arrange inspection with inspection cie;s

17 Confirmation from DeRijke warehouse / Alizay material has been loaded

18. PGI done by CSR for derijke warehouse - for alizay shipments done by warehouse themselves

19. Invoicing and release invoice to accounting

20 Prepare set of documents

Receipt BL

Check BL content (express / manual BL)

create direct collection by deutsche bank

prepare documents - certificates of origin, legalized invoices,

export licenses, inspection reports, insurance documents

send documents to customer / bank etc

21. Send documents as hard copy to customer

22. Issue commission credit memo

23 . Complete and archive file

1.9. Handling of orders strategic accounts via local warehouses Europe + STO process

2.1 Local Material Mgt. - calculate re-order quantity

- Customer Care Supervisor (CC Spv) resp. Customer Service Rep (CSR) in charge of local Material Mgt. periodically (Bologna, Duesseldorf, Tarragona: bi-weekly / Alizay once per month) reviews current inventory levels and calculates re-order quantities per product type using Excel program for stock replenishment. It takes into consideration average sales per type, sales forecast, inventory targets and minimum order quantites.

2.2 Local Material Mgt. - purchase order entry

- Combines the products needed into one purchase order (PO) per storage location (Antwerp/Alizay).

- Enters purchase order into the SAP system specifying relevant details on:

Ø supplier (CMC: Aqualon France; all other SBU's: Hercules Doel)

Ø production plant

Ø storage location

Ø ship-to address

Ø product (material no.)

Ø quantity

Ø delivery date

Ø special product specifications - if applicable

Ø transfer price (based on transfer price list issued by Business Mgt.)

- Every STO that has been entered automatically receives a unique SAP reference # that is referred to in the further execution of the purchase order.

- when saving/printing the STO it is automatically dropped-off on the printer of the Customer Service Dept. in Rijswijk to start processing an intercompany sales order.

Specifics per location:

Bologna + Tarragona	STO print is checked by CC Spv and then CSR submits STO to MM in Rijswijk.
Alizay	PO is created by CS Spv.

2.3 CS Rep. Rijswijk office - purchase order review

- CSR located in Rijswijk office being in charge of handling intercompany orders reviews the STO vs. Customer Master Data, i.e. product, special specifications, transfer price. Special attention is given to the requested date of delivery as indicated by the sister company.

2.4 CS Rep. Rijswijk office - order entry in SAP

- A sales order is entered into the SAP system using the "Order Master" (ZPRO) of the respective sister company containing all relevant standard order details that are completed by variable specific order details.

- In case an "Order Master"(ZPRO) is not available or a product is missing in an existing ZPRO, it has to be created/extended (ref. ZPRO/Master Data Maintainance procedure).

- Every order that has been entered automatically receives a unique SAP reference # that is referred to in the further execution of the order.

- After order entry:

a) an order confirmation is printed on the sister company's printer.

b) an internal copy of the order confirmation is printed locally.

c) order data are automatically submitted to the Material Management Department for availability check and material allocation.

2.5 Local Material Mgt. - check order confirmation

- checks if order confirmation is compliant with PO and signs it off for correctness. Checks the COA for material that has a product specification related SCS. Clears any difference with CSR in Rijswijk.

2.6 Material Management Department (MM) - make material available

- Verifies product availability in line with the requested shipdate:

a) if product is available, prints Delivery Note on local printer. Certificates of Analysis are printed both on local printer and on the sister company's printer.

b) if product is not available, MM gives indication to CSR on when material is expected to become available (via print "notification of planned shipdate") for follow-up with sister company.

2.7 CS Rep. Local office - instruct warehouse

- Submits to the warehouse the order data, including all necessary instructions for preparation of consignment for shipment. At the same time prints the delivery note on the sister company's printer.

2.8 CS Rep. Local office - instruct forwarder

- Instructs the forwarder for execution of physical transportation of the consignment.

2.9 Local Material Mgt. - notify local warehouse

- Upon receipt of the delivery note notifies the local warehouse on the details of the upcoming delivery.

2.10 C S - automatic inventory booking

- Upon creation of the "Notification of Dispatch" material is automatically booked into local inventory.

Specifics per location:

Alizay

material is booked in "In transit 9999"

2.11 CS Mgt. - check Goods receipt of local warehouse

- checks if the confirmation from the local warehouse on material received is compliant with the delivery note (products/lot numbers/quantities). In case of deviations clears differences with local warehouse and/or CS Rep. in Rijswijk.

Specifics per location:

Alizay

a transfer posting has to be done before allocation of material

2.12 Filing

CS: Archives all STO’ orders when completed.

1.10 Handling of 3^rd party orders strategic accounts Europe

2.2 Customer Service Rep. - receipt of order

- Receives customer orders via letter, fax message, e-mail, phone or via Sales Force.

- Orders placed by phone have to be documented in written form.

2.2 Customer Service Rep. - order review

- Reviews the orders vs. Customer Master Data, i.e. product, special specifications, price, delivery and payment terms. Special attention is given to the requested date of delivery as indicated by the customer.

2.13 Customer Service Rep. - order review / deviations

- Any deviation from standard conditions has to be addressed to Sales in order to get approval or instructions on how to proceed (for ex. initiate the SCR procedure).

- Customers have to be informed accordingly.

2.14 Customer Service Rep. - order entry in SAP

- The order is to be entered within 24 hours after order receipt into the SAP system on basis of an "Order Master" (ZPRO) containing all relevant standard order details that are completed by variable specific order details. For each delivery date separate orders have to be entered in SAP system. Special attention is to be given to the application code (PAC) assigned to the ordered materials.

- In case an "Order Master" is not available, it has to be created/extended (ref. ZPRO/Master Data Maintainance procedure).

- Every order that has been entered automatically receives a unique SAP reference # that is referred to in the further execution of the order.

- The SAP system automatically checks every newly entered order and blocks it in case of overdue payments or exceeding customer´s credit limit.

- The Customer Service Rep. follows blocked orders in respect of timely delivery to the customers in close contact with the Credit Control Department and/or Sales.

- Upon release of the order by the Credit Control Department, the SAP system generates a "Notification of Credit Release" and the Customer Service Rep. can proceed with the order processing.

- After order entry an internal Order Confirmation is printed. This document includes text fields with the instructions for correct order processing.

2.15 Customer Service Rep. - Purchase Order creation

- After order entry a Purchase Order (PO) is automatically created by the SAP system. In case of credit hold, P.O. is created only after credit release.

- Customer Service Rep. completes the Purchase Order by adding variable specific Purchase Order details such as delivery date and request of CoA.

2.16 CC Supervisor or oth. CC team member - 2^nd order and PO check

- The Order is double-checked by a second person (Supervisor or other responsible person within Customer Care team). Order is to be checked line by line and to be signed-off on the order confirmation (internal copy) for correctness.

- The Purchase Order is checked by the Customer Service Rep. and initialled for correctness. It is then double checked either by the Customer Care Supervisor or other responsible person within Customer Care team.

2.17 Customer Service Rep. - order confirmation

-	An external copy of the order confirmation is sent to the customer only upon request or if needed either immediately after order approval or after confirmation of material availability (see item 2.9).

2.18 Customer Service Rep. - PO submission

- CSR sends the PO to the third party supplier or to mother company.

2.19 Customer Service Rep. - PO confirmation

- Receives from the third party supplier/mother company a written confirmation of the PO, can either be an order confirmation or the delivery note (see 2.10a).

- Checks the confirmation and signs it off for correctness.

2.20 Customer Service Rep. - material availability follow up

- CSR verifies product availability as mentioned on the supplier’s confirmation:

if product is available, receives the Delivery Note and Certificate of Analysis (the latter only upon request) from the third party supplier;

if product is not available, informs the customer and/or Sales on when material is expected to become available and follows up availability with third party supplier.

2.21 Third Party Supplier / Customer Service Rep. - arrangement of shipment

- The shipment of the goods is arranged by the third party supplier, except when differently agreed. In the latter case, CSR instructs the forwarder for execution of physical transportation of the consignment. CSR prepares any specific documents necessary for customs clearance and/or to be sent to the customer.

- For consignments ex mother company, material has to be customs cleared upon arrival. All documentation for customs clearance is prepared by mother company, whereas local CSR contacts the customs clearance service company to follow up customs clearance. If needed by local law, CSR sends a manual delivery document to customs clearance service company to accompany material during delivery to final customer.

- In case the order includes material that has a product specification related SCS , a COA check needs to be done prior to sending it - where applicable.

- CS SPV notifies local area controller tocreate proper accrual for SOX

2.22 Customer Service Rep. - invoicing

- PO placed to third party suppliers: Upon receipt of the confirmation of the shipment from the third party supplier, starts the invoicing procedure:

a) posts Goods Receipt;

b) creates invoice;

c) sends invoice to customer.

-	*Intercompany PO placed to mother company:* after customs clearance, starts invoicing procedure (Goods Receipt is posted by mother company):

a) creates invoice;

b) sends invoice to customer.

-	Third party suppliers send their invoices directly to the European Shared Services Center (ESSC) in Rijswijk for checking and payment. In case invoices are not compliant with POs, ESSC blocks/parks them and sends them to the local office for investigation and/or approval.

2.23 Customer Service Rep. - filing

- Archives all orders and POs when completed.

1.11 Pricing Strategic Accounts EMA

List Pricing

The Supplier’s responsibilities include, but are not limited to the following:

1. European pricing coordinator receives excel form with all price and customer information and processes this information into SAP as list price

2. EPC validates what has been entered into SAP against actual price lists

Competitive Prices (CPI - off list pricing)

The Supplier’s responsibilities include, but are not limited to the following:

1. EPC receive CPI form from sales or business support as excel form via lotus notes

2. Enter CPI directly into SAP

3. Two approvals are required for price to be accepted in the system

4. Notify Hercules when CPI’s are available for approval

5. Review exception reports to monitor timeliness / rejections etc in approval process

6. Escalate delinquent approvals

7. Notify Customer Service to update new prices on existing and new orders

8. Interfaces with sales or business support to resolve any pricing issues

Price Over-ride Process

The Supplier’s responsibilities include, but are not limited to the following:

1. Orders on books, already priced, confirmed to customer for future shipment, no price shows up in SAP during order processing, disconnect between PO and SAP aut. price

2. Revert to Industry Manager / Sales Mngr / Sales Repr with issue to check conditions before further order processing

4. receive confirmation by email (CPI process started meanwhile for future orders)

5. Advise all CSRs to go into SAP and bill block all orders that have pending price increases / other issues mentioned.

6. Remove bill block as required

7. Over-ride prices where necessary and provide reason

8. Continue with order process as described

1.12 SCR process - service related SCR’s

1. CSR receives special customer service related request from Sales or external source (distributor / customer)

2. Following internal discussion, decision will be taken to process the request via SCR database to seek formal approval by authorized approvers.

II Handling of agents / distributor orders

2.1 Handling of agents / distributor orders (EU)

For all processes see also sections 1.1 -> 1.14 Strategic Acccounts.

Differences are described below. If not described processes are identical to processes as described under Strategic Accounts.

2. Verify if agent / distributor is on authorized list representing Aqualon + check if commission levels (generic and exceptions) are authorized by Distribution Manager.

4. Verify if lead time policy is being adhered to; if not record non compliance in distributor sheet for distributor stock orders. Same for other order discrepancies, order adjustments. etc

5. Calculate requested ship date using lead time as formally agreed with Distribution Manager for stock orders

6. Verify quantity ordered for distributor stock meets guidelines in agreement with Distribution Manager

Others steps see 1.1 strategic accounts

2.2	EXPORT ORDER ENTRY

Distributors / Agents via Singapore office

Same steps as handling of strategic accounts via Singapore office

2.3 Handling of agents / distributor orders (Non EU)

Same steps as handling of strategic accounts for EMA (Non EU) except for steps below. See Section 1.3.

1. Order source is distributor, agent or customer

2. Verify if agent / distributor is on authorized list representing Aqualon + check if commission levels (generic and exceptions) are authorized by Distribution Manager.

4. Verify if lead time policy is being adhered to; if not record non compliance in distributor sheet for distributor stock orders. Same for other order discrepancies, order adjustments. etc

5. Calculate requested ship date using lead time as formally agreed with Distribution Manager for stock orders

6. Verify quantity ordered for distributor stock meets guidelines in agreement with Distribution Manager

2.4 Handling of agents / distributor orders via Moscow office

Same steps as handling of strategic accounts via Moscow office except for steps below. See Section 1.4.

15a. Liaise with Moscow team with respect to truck loading to ensure pallets fit in the truck / appropriate material is collected ex warehouse by Russian forwarder.

2.5 Handling of agents / distributor Tianpu

Same steps as handling of strategic accounts via Moscow office.

See Section 1.5.

2.6 Handling of consignment accounts agents / distributor

In principal not applicable otherwise section 1.6 applies

2.6 Handling of orders ex local stock agents / distributor

Same steps as handling of strategic accounts via local stock.

See Section 1.9

2.7 Handling of 3^rd party orders agents / distributor

Same steps as handling 3^rd party orders via local stock.

See Section 1.10

2.8 Pricing Agents / Distributors

Current process Customer Service (pricing project in process)

Pricing

1. Local Customer Service receives new market prices and validity criteria from sales, business support or transfer prices from distribution manager. Prices are maintained by local CSR in SAP via automatic pricing.

2. CSR validates what has been entered into SAP matches input

3. CSR processes orders against adjusted prices

2.9 Price Over-ride Process

The Supplier’s responsibilities include, but are not limited to the following:

1. If price in SAP does not match price, inco terms, etc in SAP or manually (current process) maintained distributor price list on AQ CC drive in distributor subfolder then CSR consults Business Support, Sales, Distribution Manager to verify / receive price confirmation before prices in order can be confirmed to agent / distributors

2. CSR will put billing block at order subject to price verification.

3. Following above confirmation prices in order will be updated / order confirmation will be send.

4. Remove bill block as required and continue with order process

5. Adjusted prices will be updated in SAP by CSR

2.10 SCR process - service related SCR’s

1. CSR receives special customer service related request from Sales or external source (distributor)

2. Following internal discussion, decision will be taken to process the request via SCR database to seek formal approval by authorized approvers.

III Handling of other direct accounts orders

Where applicable all processes / steps are identical to whole section strategic accounts with the exception of sections 1.7 and 1.8 which donot apply to other direct accounts.

IV Handling of other export orders

(all orders except for strategic accounts)

4.1 Orders via Singapore office

All processes / steps are identical to section strategic accounts (section 1.2) albeit that these orders are handled by the export CSR whereas orders for strategic accounts are passed to CSR handling strategic accounts

4.2. Orders via BDP warehouse

1. Receive B/L from warehouse

2. Create delivery

3. Enter PGI (Post Goods Issue) into SAP

4. Print Invoice

5. Review Invoice

6. Courier invoice to customer

4.3. Intercie orders Wilmington - Shipment from Europe to South America, or USA

The Supplier’s responsibilities include, but are not limited to the following:

1. Receive intercie purchase order in SAP

2. Review order for completeness: P. O. number, product, quantity, requested delivery date, ship to, etc

3. Calculate requested ship date using DeRijke website

4. Pull applicable zpro

5. Enter Sales order into SAP

6. Verify P.O. number and sales order are linked

7. perform 11 point check (same as before) by gatekeeper

8. Print order acknowledgement on US + MM printer

9 In case of non / late availability follow order escalation process / expedited freight policy subject to (respect) of agreed upon - leadtime.

10 a - All Material allocated follow step 11

If Partial allocation

a. inform stakeholders (Sales/ Customer)

b. subject to feedback arrange partial shipment, wait for complete order or start escalation process

c. follow step 11

11. Material allocated

a. send booking request by email to DeRijke for sea shipments

b. booking confirmation received

- if not compliant revert with request for improved booking

c. send edi to DeRijke warehouse or Alizay + seperate edi to de rijke forwarding

d Certificates of Analysis printed by MM and dropped on CS printer(s).

Where applicable arrange inspection with inspection cie;s

16 Confirmation from DeRijke warehouse / Alizay material has been loaded

17. PGI done by CSR for derijke warehouse - for alizay shipments done by warehouse themselves

18. Invoicing and release invoice to accounting

19. Prepare set of documents

Receipt BL

Check BL content (express BL)

create direct collection by deutsche bank

prepare documents - certificates of origin, legalized invoices,

export licenses, inspection reports, insurance documents

send documents to customer / bank etc

20. Send documents as hard copy to customer

21 . Complete and archive file

4.4. Pricing

Orders are placed via Purchase orders with prices approved via upfront processes managed by issuiing office (both Singapore and Wilmington)

4.5. SCR’ s

Are created by issuing office

V Tasks of Business Support Europe

5.1 Business Support Industry

5.1.1 - Handle Industry specific questions other than Supply Chain (Shera, samples, quality questionnaires, literature, pricing, availability before order is submitted, etc.)

Business, Support Repr. receives inquiry from Customer, Distributor / Agent

or Sales.

Based on expertise / knowledge next step will be taken either direct or after consultation with internal parties like Sales, Industry Mngt, CC Spv / Mngr, etc.

Sample requests will be submitted to European Sample Coordinators

SHERA inquiries

Appropriate position paper(s) will be send to customer etc subject to enquiry

Questionnaires will be discussed / filled together with other functions like SHERA Mngr., Industry Mngr, Sales, etc subject to customer criticality, level of detail, etc

Literature request will be submitted to literature room or internet reference will be made

Pricing (all steps within expected leadtime

Receives price inquiry from agent / distributor (mainly MEA)

Checks target price list in LN teamroom

Adds freight cost based on DeRijke website

Determines together with Sales / Sales Mngt and based on input from Agent / Distr if price is competitive subject to parameters like industry / regional / country pricing, competition, necessity to pick up additional business, track records with customer, etc

If yes then offer will be issued following standard procedure

If no then CPI will be issued to get approval from Sales Mngt / Industry Manager based on excel form

Following approval offer will be issued

Repr. ensures follow up take place with agent / distributor where need in close cooperation with Sales

Availability prior to order placement

Receives request to check if material is available

Checks with Mat Mngt team

Reverts to customer, agent / distr and informs on availability, lead time and request for order placement

Keeps Customer Service informed where need

Business, Support Repr. receives inquiry from Customer, Distributor/ Agent or Sales.

5.1.2. - Payment - Issues agents / customers

receives notification from Sales / ESSC / AR / DM regarding customer or agent which does not respect payment condition after standard dunning procedure

contacts customer / agent subject to agreement with sales to ensure payment will be effected

notifies ESSC about status

5.1.3. - Payment new / adjusted Credit Applications agents / customers

Issues Credit Apllication form for new customers / adjusted payment conditions

Send form to ESSC for approval (cc to Sales)

Upon approval from ESSC inform customer, agent, sales and Customer Service (to adjust SAP Masterdata / Zpro)

5.1.4 - Coordinate / issue technical service work requests for Sales

Sales requests Bus Support Representative to launch technical Service work request in Lotus Notes Database

Repr. issues request in database

Coordinates process incl respect of timelines by either party

Receives feedback from A&D Lab.

Subject to criticality / distributor / agent to be informed either Sales or Bus. Support Repr.informs requesting party

5.1.5 - Coordinate technical complaint for Sales (see also complaint handling process in Lotus Notes)

1.. Sales requests Bus Support Representative to launch technical (product specification, application failure) complaint in Lotus Notes Database

2. Repr. issues request in database

3 Coordinates process incl respect of timelines by either party

4 Receives feedback from Internal Investigator.

5. Subject to criticality / distributor / agent to be informed either Sales or Bus. Support Repr.informs external party

5.1.6 - Coordinate / issue technical special customer request for Sales

1. Sales requests Bus Support Representative to launch technical Special Customer Request in Lotus Notes Database

2., Repr. issues request in database

3. Coordinates process incl respect of timelines by either party

4. Receives feedback from final approver

5. Subject to criticality / distributor / agent to be informed either Sales or Bus. Support Repr.informs requesting party

5.1.6 - Handle Internet request

receives internet request in business email box

subject to request will handle themselves or seek advice from sales

internal steps like sample request, literature request, etc

informs customer / sales about actions taken

5.1.7. - Exhibitions Activities (e.g., providing data)

Customer Care Manager receives request for participation

Upon approval Business Support Representatives will support

Coordinate action forms / follow up where appropriate / requested by Sales

5.1.8.

- Coordinate communication process of product / specification changes towards distributor / agents including sampling, literature updates, collection of feedback, etc applying to one industry

Receives input from internal functions (Sales, CCM, IM, etc)

Ensures that agent / distributor mailing list is actual (lotus notes address database or alternative)

Sends mailing to agents / distributors in scope

Collects feedback and informs relevant internal parties (Sales, IM, etc)

5.1.9.

- Maintain address database (agents / distributors and where applicable direct customers)

receives input from different sources (sales, agent / distributor, customer, etc)

updates lotus address database to ensure future mailings will be send to appropriate contact persons

5.1.10.

Pricing - present process (pricing project in place)

Receive or request input from Sales / Ind Mngt regarding prices

Inform agents / distributor about price increase for specific industry

Maintain / Review industry content distributor / agent price lists to ensure orders are processed at appropriate prices

Liaise with Customer Service in case of questions about pricing

Send agents / distributors industry price lists (where applicable)

5.1.11 - Commissions (current process)

Inform CSR in case commission percentage has changed following approval by Distr Mngt and / or other stakeholders

Send payable commission lists (S. Europe) to agents

5.1.12 - Rebate process

1. Following agreement made between sales and customer send complete Rebate opening form to CS person handling rebates

2. During annual process be involved / inform CS rebate person about

a. discrepancies in rebates

completeness of total number of rebates in SAP versus agreed

progress made versus plan / accrual

be involved in informing CS to adjust / close rebate before

critical milestones (quarter / year end ) to ensure profits are pulled into appropriate period

3. Support Sales with rebate closure process by issuing complete Rebate closure form to CS person handling rebates following to close rebate

5.1.13 - KPI analysis

Receive agent KPI’s from reporting team

Analyze KPI’s (leadtime, size or order, a.o)

Come up with recommendations towards different stakeholders to improve / optimize business structure

5.1.14

- Prepare bi annual Agent performance reviews

see under section Business Support Generic

5.1.15

- Reporting / Analysis / Business Follow up / Maintenance of competitive data

Issue (mid)month reports with Now Looks, open orders (subject to demand)

Issue overview status of offers issued

Compare Sales results todate with previous year,

Submit comments to Sales Manager subject to Industry demands)

Issue Now Looks + Sales Plan together with industry sales (where applicable / agreed with sales)

Follow if indent customers place orders

Sample follow up (content)

Competitive data maintenance (volumes, prices, etc) subject to industry

Business Support Generic - Distributors

5.2.1.

- Forecasting for distributors

1. Receive forecast sheets from demand planners for distributors in scope

2. Pass sheets to distributors

3. Ensure sheets are returned timely by Distributors

4. Check content of forecast sheets and identify / discuss / adjust gaps

5. Send final sheet to demand planner

5.2.2.

Maintain Lotus Notes address contact database

1. see process Business Support Industry above - BSG maintains generic contact info.

5.2.3.

- Mailings to distributors

Business Support Generic receives input from different stakeholders (IM, DM, CCM, SCM) regarding generic themes (price increase, packaging changes, etc)

BSG sends generic email / attachment to agents / distributors

5.2.4. - Payment - Issues distributors

1. Receives notification from Sales / ESSC / AR / DM regarding customer or

agent which does not respect payment condition after standard dunning

procedure

2. contacts customer / agent subject to agreement with DM to ensure

payment will be effected

3. Notifies ESSC / DM about status

5.2.5 - Payment new / adjusted Credit Applications distributors

Issues Credit Apllication form for new distributors / adjusted payment conditions

2. Send form to ESSC for approval (cc to DM)

Upon approval from ESSC inform distributor, DM, sales and Customer Service (to adjust SAP Masterdata / Zpro)

5.2.6 - Performance ratings bi-annually

1. BSG assembles input / data from various angles (Sales, CS, ESSC, distributors, KPI reports, etc)

2. Based on input bi-annually a distributor performance rating sheet will be issued for all distributors /agents.

3. Upon completion form will be submitted to Distribution Manager for review with distributor

4. Final performance sheets are posted on shared drive

5.2.7 - KPI analysis distributors

1. Receive distributor KPI’s from reporting team

2 Analyze KPI’s (leadtime, size or order, a.o)

3. Come up with recommendations towards different stakeholders to improve

/ optimize business structure

5.2.8 - Coordinate Quarterly settlement process

1. Receive monthly ex stock sales from all distributors in scope

2. Compare above sales with sales in business warehouse

3. Based on minimum volumes propose to sales managers to make restatements to industries to reflect “true” industry sales

4. Receive approvals or remarks from Sales Mngrs

5. Adjust restatements if need

6. Request CS to identify SAP order lines which can be restated

7. Submit data to DM Team to make restatements etc.

5.2.9.- Follow up on distributor stock sales and other reports

1. Ensure that all distributors submit agreed upon reports to appropriate contacts within expected time frames ( monthly sales reports, quarterly reports, etc)

5.2.10.- Maintain distributor price lists (current process - part of pricing project to identify improvements)

1. Manually maintain all distributor price lists based on input from different angles (sales, DM, CCM, Bus Support Industry, etc)

2. Ensure updated price lists are posted on shared drive for overall access and order processing by CS

3. Ensure price lists are send out to distributors which are entitled to receive price lists

5.2.11- Communicate generic price increases to distributors / maintain price

lists

1. Receive input from CCM / DM / Ind Mngt / Sales regarding price increase

2.Inform agents / distributor about price increase for specific industry

3. Maintain / Review industry content distributor price lists to ensure orders are processed at appropriate prices

4. Liaise with Customer Service in case of questions about pricing

5. Send distributors price lists for all industries (where applicable)

5.2.12 - Coordinate price support Distributors

1. Distributors have special prices to retain specific agreed upon customers

2. Distributors are charged at normal standard transfer price

3. Business Support receives on monthly / quarterly basis overview from

Distributor with customers sales (price - volume)

Business Support matches info with prices agreed upon / volumes sold to

Distributor stock

Business Support submits file to Distribution Manager for approval

Upon approval informs CSR to issue Credit Note

VI Other generic Customer Service processes

1. Preship Sample Process, Inspections , Import licenses

(Samples sent to Customer for testing; track through SAP)

The Supplier’s responsibilities include, but are not limited to the following:

1. Receive order

2. Review CSR Header Notes or instructions in intercie purchase orders for pertinent details

3. Request made to send pre-ship sample prior to shipment after consultation with stakeholders

4. Notify Mat. Mngt to allocate batches involved via SAP process

5. a. For import licenses wait for importlicense number

. upon receipt book order etc with DeRijke + standard order process

5. b. pre sample

Delivery to warehouse - instruction to send out turn sample to customer

Batches allocated by MM

Upon approval from customer follow order process

If not approved - cancel delivery

New sample selection etc

5. c inspection

Delivery made

Schedule appointment with Inspection office

Warehouse notified via EDI

Goods prepared for inspection

Inspection performed

If ok follow order process

2. Expedited Freight - Hercules Pays Freight

The Supplier’s responsibilities include, but are not limited to the following:

If customer is paying for freight costs no approval is necessary

If Hercules pays freight :

1. Receive order

2. Request made to expedite order

3. Check rates for expedited freight / delivery performance levels with DeRijke

4. Obtain approval via escalation procedure subject to amount / DOA agreed

5. Contact DeRijke and warehouse / plant with requirement

6. Place order

3. Air Freight Policy - Hercules Pays Freight

The Supplier’s responsibilities include, but are not limited to the following:

If customer is paying for freight costs no approval is necessary

If Hercules pays freight :

1. Receive order

2. Request made to expedite order

3. Check rates for expedited freight / delivery performance levels with DeRijke

4. Obtain approval via escalation procedure subject to amount / DOA agreed

5. Contact DeRijke and warehouse / plant with requirement

6. Place order

4. No Charge Order Policy

The Supplier’s responsibilities include, but are not limited to the following:

1. Receive order

2. Request made to ship order at no charge

3. Obtain approval from Industry Manager / Sales Manager

4. Calculate requested ship date using DeRijke leadtimes

5. Enter No Charge Order type (TANN order) into SAP

5. Orders Shipped/Not Billed

The Supplier’s responsibilities include, but are not limited to the following:

1. Review SAP report (ZVDEL / ZFSAS)

2. Investigate each order on report

3. Contact respective customer service representative to take action needed to finalize invoice

4. Print invoice

6. Orders Billed not Released to Accounting

The Supplier’s responsibilities include, but are not limited to the following:

1. Review SAP report (AQSD01W3)

2. Investigate each order on report

3. Contact respective customer service representative to take action needed to finalize invoice

4. Print invoice

5. Mail invoice

7. Manual Invoice - Credit Memo Issuance

The Supplier’s responsibilities include, but are not limited to the following:

1. Review request for credit memo to be issued

2. Review all documentation for approvals

3. Enter credit requests into SAP

4. Approve credit request in SAP by supervisor

5. Print credit invoice

6. Review credit invoice

7. Mail credit invoice to customer

8. How to Request a Freight Quote / leadtime

The Supplier’s responsibilities include, but are not limited to the following:

1.Check DeRijke website

2. If not on website approach DeRijke for any rate / leadtime

9. CUSTOMER COMPLAINT PROCESS

(present European process - adjustments in progress)

A. Preparation of a Customer Complaint/Resolution

The Supplier’s responsibilities include, but are not limited to the following:

1. CSR enters complaint into lotus notes complaint database or Non Conformity form

2. If return is required, CSR enters return order into SAP

3. If material is to be replaced, CSR enters new order in SAP to be sent to customer

4. If material is to be destroyed, CSR advises customer once approved CCA is approved in database by Industry Manager

B. How to Handle Damaged and Carrier Complaints

The Supplier’s responsibilities include, but are not limited to the following:

1. CSR enters complaint into Non Conformity sheet

2. NC is send to European coordinator

3. Upon revision EC sends NC to DeRijke for review / corrective actions

4. Feedback received from DeRijke and submitted to CSR

5. EC maintains status, liabilities etc in overview incl KPI’s for monthly performance review with DeRijke

6. If return is required CSR enters return order into SAP

7. If material is to be replaced, CSR enters new order in SAP to be sent to customer

8. If material is to be destroyed, CSR advises customer once approved by Management

C. Processing of Returns (not only for complaints)

The Supplier’s responsibilities include, but are not limited to the following:

1. Receive notification from customer to return material

2. Determine if an approved complaint report is available; if so

advise customer to return material in accordance with complaint report

3. Enter return order in SAP notating product and quantity to be returned

4. Fill Return sheet with relevant information to be approved by CC Supervisor and Mat Mngt

5. Issue EDI to notify forwarder to pick up material

6. Send form to receiving location (plant or warehouse) to notify

7. Receiving location physically receives the material

8. Notification from warehouses that material has been received

9. Receiving location enters return delivery and post goods issue into SAP (Alizay does GR - Antwerp GR by MM)

10. CSR releases the credit invoice to the customer

11. Release Credit note by Supervisor

11. Print the invoice

12. Review the invoice for accuracy

13. Mail the invoice when required

VII. CUSTOMER MASTER DATA

All masterdata changes are archived in file for SOX compliance

A. Request for Tax Exemption Certificate

The Supplier’s responsibilities include, but are not limited to the following:

1. Determine if a new customer is tax exempt

2. Set master data at -0- “tax exempt”

3. Send letter to the customer requesting their tax exemption certificate

4. Receive signed tax exemption certificate from customer

5. File in customer file

B. Update and Maintain Tax Code by Customer & Sales Record for GST/VAT

The Supplier’s responsibilities include, but are not limited to the following:

1. Receive input from TAX dept.

2. Maintain Zpro either manual or DLSM table

C. Agent Commissions (Create Master Data File)

The Supplier’s responsibilities include, but are not limited to the following:

1. Legal agreement in place, provides products covered, rate % of commission to be issued and on what basis

2. Create agent number in SAP

3. Enter % discount in pricing conditions

4. Partner agent number to respective zpro

D. Process for Creating a Sold to/Ship to

The Supplier’s responsibilities include, but are not limited to the following:

1. Receive an order from a new customer with sold to and ship to information

2. Create the address(s) in SAP master data using the information provided by the customer filling in the data on the appropriate screens

3. Partner sold to, ship to and payer numbers to the sold to party in SAP

E. Process for Creating / adjusting a payment condition in SAP

1. Receive approved credit application form from ESSC

2. Process request in SAP

F. Salesman Number Changes

The Supplier’s responsibilities include, but are not limited to the following:

1. Receive new salesman assignments

2. Partner new salesman number to “Customer Sold To”

3. Update appropriate ZPRO(s) at the item partner level and makes the change

G. IPC Changes

The Supplier’s responsibilities include, but are not limited to the following:

1. Receive new IPC assignments

2. Partner new IPC to “Customer Sold To” / Ship to location

3. Update appropriate ZPRO(s) at the IPC code level and makes the change

H. Extend Materials in SAP

The Supplier’s responsibilities include, but are not limited to the following:

a. existing materials to be extended to new sales org / plant

CS Masterdata contact liaises with different contacts (procurement, Quality, plant) to ensure set up in SAP is complete for order processing

b. new materials

. CS masterdata contact submits request via lotus notes database

I. Synchronize SAP Zpro and Masterdata

On intermittent basis compare ZPRO / Masterdata with appropriate reports Make adjustments where need.

VIII REBATE PROCESS

The Supplier’s responsibilities include, but are not limited to the following:

1. Receive RRF (Rebate Request Form) from sales representative / business support industry repr. via email

2. Request sales mngt and business management approval

3. Create rebate in SAP

4. Created after beginning validity, do accruals for time between beginning validity and rebate creating

5. If need (late receipt of rebates a.o.) make make manual accruals for previous months

6. If rebate is not direct (through distributor, agent, or entity not on SAP), do monthly accruals

7. After ending validity, check rebate and request agreement of sales representative to settle rebate for specific amount.

8. Upon agreement of sales representative, request approval of sales mngt and business management to settle rebate

9. Settle rebate and send rebate credit or order as FOC material to Customer Service / Customer

10. Liaise with CSR that FOC order has been shipped / invoiced

11. Close rebate

VIIII` SAMPLE PROCESS

DIRECT CUSTOMERS AND AGENTS

-	Customer/Agent places sample order with Sales Representative

-	Sales Representative completes standard sample order form and sends to Sample Administrator

-	Sample Administrator coordinates the shipment of the sample with the Sample Room in Zwijndrecht, AWT Duesseldorf or Alizay

-	Sample Room confirms the shipment to the original requester of the sample and to the Sample Administrator

-	On a monthly basis excel file with pivot table options will be made available (for all sales representatives and business support) in a team room

DISTRIBUTORS

-	Distributors will place sample orders in standard format directly with the Sample Administrator, and will send a copy of the sample request to the appropriate Sales Representative/Business Support (see notes below)

-	Sample Administrator coordinates the shipment of the sample with the Sample Room in Zwijndrecht, AWT Duesseldorf or Alizay

-	Sample Room confirms the shipment to the original requester of the sample and to the Sample Administrator

On a monthly basis excel file with pivot table options will be made available (for all sales representatives and business support) in a team room

X REPORTING AND RECORDS RETENTION

1. REPORTING

The Supplier’s responsibilities include, but are not limited to the following:

1. Perform standard reporting requirements as defined

2. Provide Ad Hoc reports as requested

2. Record Retention

The Supplier’s responsibilities include, but are not limited to the following:

1. Retain source documentation and reports

2. Provide scanned document images for source documentation and reports - hard copies, CD Rom, Fiche, Film and imaging - in accordance with Hercules policies and procedures

3. Retrieve archived reports and documentation as requested by Hercules

4. Maintain documentation in accordance with Hercules policies and procedures

5. Dispose of documentation in accordance with Hercules policies and procedures

XI PERFORMANCE MEASUREMENT AND EFFECTIVENESS

The Supplier’s responsibilities include, but are not limited to the following:

1. Provide consistent metrics and process performance information as defined in this document

2. Provide explanations relative to performance levels, root-cause analyses, corrective measures planned, etc. as requested by Hercules

3. Monitor and report performance and service levels, using agreed upon measurement processes, tools and methodologies

4. Review existing processes to evaluate process performance and work with Hercules management to develop action plans to improve upon current performance levels

XII MONITOR AND COMMUNICATE SERVICE COMPLIANCE

The Supplier’s responsibilities include, but are not limited to the following:

1. Continuously audit adherence to Hercules accounting rules and requirements

2. Facilitate Hercules audit of processes, including compliance with defined rules and requirements

HERCULES

Schedule E.4C

Order to Invoice (OTI)

Europe PTV (Paper)

Table of Contents

I. INTRODUCTION 3

II. GENERAL REQUIREMENTS 3

II. Aqualon in Process

III. PT&V Division 4

1.0 ORDER ENTRY4

1.1 Order entry , including distributors

1.2 Goods Receipt third party orders

1.3 Consignment accounts

1.4 Export (outside EU) order entry

1.5 Stock Transfer Orders

1.6 Import material for PT&V EU Accounts

2.0

CONTRACT ADMINISTRATION…………………………………………………………8

3.0

DISTRIBUTOR DISCOUNTS……………………………………………………………8

4.0 AGENT COMMISSION………………………………………………………...9

5.0

PRICING AND FREIGHT ACCRUAL ADMINISTRATION………………...9

5.1 Pricing Adminstration

5.2 Freight accruals

6.0

REBATE ADMINISTRATION…………………………………………………10

7.0 WAREHOUSE REPLENISHMENT (finished goods)………………….…10

8.0 CUSTOMER COMPLAINT PROCESS…………………………………………11

8.1 Preparation of a customer complaint / Resolution

8.2 How to handle a Damaged product and Carrier complaint

8.3 Processing of a product return

9.0 CUSTOMER MASTER DATA………………………………………………..12

9.1 Request for a tax Exempt Certificate

9.2 Process for creating a sold to / ship to

9.3 Salesman Number Change

10.0 INVOICING AND CREDITING……………………………………………….13

10.1 Orders shipped not billed

10.2 Orders billed, not released to accounting

11.0 REQUEST EXTENTION OF MATERIAL……………………………………14

IV. REPORTING AND RECORDS RETENTION 11

V. PERFORMANCE MEASUREMENT AND EFFECTIVENESS 14

VI. MONITOR AND COMMUNICATE SERVICE COMPLIANCE 15

I. INTRODUCTION

This Schedule sets forth the EU Order To Invoice (OTI) Business Process Services that the Supplier will provide, as of the Commencement Date unless otherwise specified. The Statements of Work defined in this Schedule were developed to include all in-scope activities performed by affected employees within the HERCULES Order To Invoice (OTI) function for EU PTV. The Supplier will be responsible for all functions performed by employees affected by the proposed outsourcing of services.