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Information Technology Outsorcing Transaction - Halvey K.J.

Halvey K.J. Information Technology Outsorcing Transaction - Wiley Publishing, 2005. - 649 p.
ISBN-10 0-471-45949-6
Download (direct link): informationoutsourcingtransactions2005.pdf
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о What are each party’s indemnification obligations (e.g., for claims
of infringement, employee claims).
о Determine the representations and warranties to be made by each
party.
40. Dispute Resolution
о How will disputes be handled? Will the agreement include an esca-
lation procedure?
о Will unresolved disputes be handled through arbitration or
litigation?
41. Business Continuity
о Does Vendor have redundant infrastructure?
о What are Vendor’s disaster recovery plans?
184 Ch. 4 Outsourcing Contract
о Where is the Vendor’s secondary site?
о What is Customer’s existing business recovery plan? Will Customer’ s plans be terminated?
о Specify response times for delivery of business recovery services. Describe escalation procedures.
42. Assignment
о Specify each party’s right to assign its rights/obligations under the agreement in whole or in part.
о Will there be any special assignment rights in the event of a merger/ acquisition/divestiture?
о May either party assign to an affiliate/related entity?
43. Solicitation of Employees
о Will there be any limitations/restrictions on Customer’s or Vendor’s right to solicit and/or hire the other party’s employees?
о When will such limitations/restrictions apply (e.g., during the term, after expiration/termination)?
о Will there be any exceptions for blind solicitations (e.g., newspaper advertisements)?
44. Miscellaneous Provisions
о Notices. How will notices be given (e.g., by hand, by facsimile)?
To whom (e.g., to business manager and/or counsel)?
о Publicity. Are there any limitations/restrictions on each party’s
ability to make public statements regarding the other party and/or the transaction?
о Governing law. Determine which state/country law will govern the
transaction (or if international transaction with multiple documents, determine which law will govern each part of the transaction).
о Venue. Will there be a requirement that any action be brought in a
particular venue?
о Import/export. Provide any limitations/restrictions on the export/
import of data and/or technology.
о Interpretation of documents. How will the transaction documents
be interpreted in the event of a dispute (e.g., the main agreement will take precedence over the exhibits/schedules, change orders will take precedence over earlier dated documents)?
о Counterparts. Specify whether the various transaction documents
may be executed in counterparts.
о Relationship of the Parties. Specify that Vendor is an independent
contractor to Customer and that the provision of services does not
Appendix 4.2 Key Issues in Offshore Outsourcing Agreements 185
constitute any type of partnership or joint venture (unless that is expressly the intent).
о Severability. Specify that if any provision is held to be invalid that the remaining provisions shall remain in full force and effect.
о Waivers. Specify that any delay or omission does not constitute a waiver of rights and that any waiver should not be construed to be a waiver of a subsequent breach/covenant.
о Entire agreement. Specify that the transaction documents constitute the entire agreement between the parties.
о Amendments. Specify how the transaction documents may be amended (e.g., by writing signed by both parties).
о Survival. Specify which provisions of the agreement will survive termination and/or expiration of the agreement.
о Third-party beneficiaries. Expressly state that there will not be any third-party beneficiaries under the transaction documents or, if there will be third-party beneficiaries, identify such beneficiaries.
о Covenant of further assurances. Expressly state that each party will execute any documents or perform any actions necessary to effectuate the purposes of the agreement.
APPENDIX
4.3
KEY ISSUES IN A DATA CENTER OUTSOURCING TRANSACTION4
1. Current vs. New Environment
о Is the vendor continuing to operate the current environment or will
the vendor move to a new environment? Should there be separate scope exhibits for the current vs. the new? о If new, what are the customer requirements for the new environment?
2. Migration from an Incumbent Provider or In-house Service
о Are there existing procedures manuals that the customer can share?
о If an incumbent provider, what are the termination assistance
requirements?
о Will the existing personnel be available for knowledge transfer?
о What is the migration plan (e.g., timing, critical milestones, when
does pricing commence)?
3. Employee Issues
о Determine whether any or all of the customer employees/temps/
contractors will be offered employment by, or transitioned to, the vendor or a vendor subcontractor. о If not, are there any automatic transfer requirements?
о Identify group of retained employees.
о Review the customer’s severance/redundancy policy, if any, to
determine whether a transition to the vendor may invoke severance obligations. (If so, factor into the customer’s cost analysis.) о Are there any claims with respect to any of the transitioned employees?
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