Transition Services. Except in the case of a non-renewal of the Agreement under Section 6.2 (Non-Renewal of Initial Term or Any Renewal Term; Fee Payable) or an early termination of the Agreement by University under Section 6.3 (Early Termination of Initial Term; Fee Payable), if this Agreement or any particular Service is terminated (regardless of the reason for such termination), (a) by Provider, then, at University’s written election, Provider will continue providing the Services (or the applicable Service) for a period of up to two (2) years following the termination date, or (b) by University, then, at University’s written election, Provider will continue providing the Services (or applicable Service) for a period of up to six (6) months following the termination date (the post-termination services are referred to herein as the “Transition Services,” and the applicable period during which the Transition Services are provided is referred to herein as the “Transition Period”). Notwithstanding the foregoing, if this Agreement or a Service is terminated as a result of University’s failure to timely pay the applicable Services Fees, then if University desires to receive Transition Services during the Transition Period, University must, prior to the commencement of any Transition Services, (a) pay all outstanding Services Fees that are not subject to a good faith dispute by University pursuant to Section 5.2 (Delinquent Payments) and (b) pay the estimated Services Fees as reasonably determined by Provider for the Transition Period on a monthly basis in advance. If the actual Services Fees payable for the Transition Period are different than the estimated Services Fees paid by University, then (i) if the actual Services Fees exceed the estimated Services Fees, University will pay the difference within thirty (30) days after the expiration of the Transition Period, and (ii) if the actual Services Fees are less than the estimated Services Fees, Provider will refund to University the difference within thirty (30) days after the expiration of the Transition Period. The Transition Services will be provided at least at the same levels of quality and timeliness of performance as such Services were required to be provided prior to the termination. In connection with a termination of the Agreement, University may, upon written notice to Provider, modify the specific Transition Services to be provided to a subset of the Services provided under this Agreement and, in any case, may reduce the term for the Transition Period to a lesser period. Following any termination, the Parties agree to work in good faith to effectuate an orderly transition of the Services (or any particular Service), with a goal of minimum interruption to University, its students and its Educational Activities. It is agreed and understood that the licenses granted to Provider in Section 10 (Intellectual Property Rights) shall remain in effect during the Transition Period, provided that University complies with the terms in this Agreement, including timely paying the Services Fees for the Transition Services. If this Agreement expires following the giving by a Party of notice of non-renewal under Section 6.2 (Non-Renewal of Initial Term or Any Renewal Term; Fee Payable) above, or is terminated by University following the giving by University of notice of termination under Section 6.3 (Early Termination of Initial Term; Fee Payable), then during the period between the giving of such notice of non-renewal or termination and the expiration or termination of the Initial Term or expiration of any Renewal Term, the Parties shall likewise work in good faith to wind down their relationship and effectuate an orderly transition of the Services, with a goal of minimum interruption to University, its students and its Educational Activities.
Appears in 2 contracts
Sources: Master Services Agreement (Grand Canyon Education, Inc.), Master Services Agreement (Grand Canyon Education, Inc.)
Transition Services. Except as agreed to in writing by the Seller and the Buyer, all data processing, accounting, insurance, banking, personnel, legal, communications and other products and services provided to the Company by the Seller or any affiliate of the Seller, including any agreements or understandings (written or oral) with respect thereto, shall terminate simultaneously with the Closing without any further action or liability on the part of the parties thereto. Notwithstanding the foregoing, in the case absence of a non-renewal of the Agreement under Section 6.2 (Non-Renewal of Initial Term or Any Renewal Term; Fee Payable) or an early termination of the Agreement by University under Section 6.3 (Early Termination of Initial Term; Fee Payable), if this Agreement or any particular Service is terminated (regardless of the reason for such termination), (a) by Provider, thenwritten agreement, at University’s written electionthe Buyer's request, Provider will continue providing the Services (or the applicable Service) Seller shall provide, for a period of up to two (2) years following the termination date, or (b) by University, then, at University’s written election, Provider will continue providing the Services (or applicable Service) for a period of up to six (6) months following after the termination date Closing, services (similar to those contemplated by the post-termination preceding sentence as shall be mutually agreed to by the parties) to the Company, which services, at the Buyer's request, shall be provided at a price for such services are referred that is equal to herein DQE's or the Seller's Actual Cost (as defined below) for such services, as the “Transition Services,” and the applicable period during which the Transition Services are provided is referred case may be, to herein as the “Transition Period”). Notwithstanding the foregoing, if this Agreement or a Service is terminated as a result of University’s failure to timely pay the applicable Services Fees, then if University desires to receive Transition Services during the Transition Period, University must, prior to the commencement of any Transition Services, (a) pay all outstanding Services Fees that are not subject to a good faith dispute by University pursuant to Section 5.2 (Delinquent Payments) and (b) pay the estimated Services Fees as reasonably determined by Provider for the Transition Period be paid on a monthly basis in advanceby the Buyer to DQE or the Seller. If The term "Actual Cost" shall mean the actual Services Fees payable for sum of (A) the Transition Period are different than reasonable costs or expenses actually incurred by the estimated Services Fees paid by UniversitySeller or DQE attributable to the provision of transition services to the Buyer, then including (i) if the actual Services Fees exceed the estimated Services Feesreasonable salary and benefits for personnel performing transition services for those hours when such personnel are performing transition services, University will pay the difference within thirty (30ii) days after the expiration of the Transition Periodreasonable payments to temporary contract employees for, or related to, transition services, and (iiiii) if the actual Services Fees are less than the estimated Services Feesreasonable payments to vendors and other third parties for, Provider will refund to University the difference within thirty or related to, transition services, and (30B) days after the expiration costs of the Transition PeriodSeller or DQE, including all overheads, that cannot be specifically identified with a particular service or product provided to the Buyer but that are reasonably allocable to the products or services rendered by the Seller or DQE. The Transition Services At the request of the Buyer prior to Closing, the Seller and the Buyer will cooperate to negotiate reasonable and mutually acceptable terms upon which specific transition services will be provided at least after the Closing. In addition, at the same levels request of quality and timeliness of performance as such Services were required to be provided the Buyer prior to the termination. In connection with a termination of the Agreement, University may, upon written notice to Provider, modify the specific Transition Services to be provided to a subset of the Services provided under this Agreement and, in any case, may reduce the term for the Transition Period to a lesser period. Following any terminationClosing, the Parties agree Seller and the Buyer will cooperate to work negotiate reasonable and mutually acceptable terms pursuant to which the Seller, to the extent it retains, following the Closing, an ownership or leasehold interest in good faith the office building located in the Brittmoore-▇▇▇▇▇▇ Industrial Park, shall lease to effectuate an orderly transition the Company for a period of one (1) year following the Services Closing Date (or any particular Service), with a goal such shorter period of minimum interruption to University, its students and its Educational Activities. It is agreed and understood time in the event that the licenses granted Seller's ownership or leasehold interest shall expire or terminate prior to Provider in Section 10 (Intellectual Property Rights) shall remain in effect during the Transition Period, provided that University complies with the terms in this Agreement, including timely paying the Services Fees for the Transition Services. If this Agreement expires following the giving by a Party of notice of non-renewal under Section 6.2 (Non-Renewal of Initial Term or Any Renewal Term; Fee Payable) above, or is terminated by University following the giving by University of notice of termination under Section 6.3 (Early Termination of Initial Term; Fee Payable), then during the period between the giving conclusion of such notice one year period) such space in said office building that is substantially equivalent to the space that the Company is using in said building on the date hereof at a monthly rent payment equal to the Seller's actual costs in respect of non-renewal or termination and the expiration or termination of the Initial Term or expiration of any Renewal Term, the Parties shall likewise work in good faith to wind down their relationship and effectuate an orderly transition of the Services, with a goal of minimum interruption to University, its students and its Educational Activitiessuch space.
Appears in 2 contracts
Sources: LLC Purchase Agreement (Dqe Inc), LLC Purchase Agreement (Southwest Water Co)
Transition Services. Except 1.1 During the term of this Agreement as set forth in Section 3 hereof, HEP shall provide, or cause to be provided, to Regency Sub, the case of a non-renewal of services listed on Exhibit A attached hereto (the Agreement under Section 6.2 (Non-Renewal of Initial Term or Any Renewal Term; Fee Payable) or an early termination of the Agreement by University under Section 6.3 (Early Termination of Initial Term; Fee Payable“Service Schedule”), if this Agreement or any particular Service is terminated (regardless of the reason for such termination), (a) by Provider, then, at University’s written election, Provider will continue providing the Services (or the applicable Service) for a period of up to two (2) years following the termination date, or (b) by University, then, at University’s written election, Provider will continue providing the Services (or applicable Service) for a period of up to six (6) months following the termination date (the post-termination which services are collectively shall be referred to herein as the “Transition Services,” .”
1.2 Regency shall pay HEP a monthly fee of $175,000 (the “Monthly Transition Services Fee”) for providing the Transition Services, which is a reasonable approximation of the costs, including any allocated overhead expenses that are directly related to the provision of the Transition Services to Regency Sub, incurred by HEP to provide the Transition Services.
1.3 HEP shall not be obligated to provide any service to Regency Sub other than the Transition Services. Notwithstanding anything else in this Agreement, in no case shall HEP be required to render or provide any professional advice or opinion, including, but not limited to with regard to tax, legal, treasury, finance or employment issues.
1.4 HEP shall provide, or cause to be provided, the Transition Services in all material respects (including accuracy, quality, completeness, timeliness, priority and responsiveness) consistent with the quality, timing, level and volume of services provided to the ▇▇▇▇▇▇ LLCs and the applicable period Subsidiaries within the twelve (12) months prior to the Closing Date (the “Performance Standard”). EXCEPT FOR THE FOREGOING WARRANTIES, HEP HEREBY DISCLAIMS ANY AND ALL OTHER WARRANTIES WITH RESPECT TO THE TRANSITION SERVICES OR THIS AGREEMENT, WHETHER EXPRESS OR IMPLIED, WRITTEN OR ORAL, STATUTORY OR OTHERWISE, INCLUDING ANY WARRANTY OF GOOD AND WORKMANLIKE MANNER, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. If Regency believes that any Transition Service has failed to meet the Performance Standard, Regency shall notify HEP of such failure and, if requested by HEP, shall meet with HEP (in person, by videoconference, or by teleconference) as promptly as practicable (but in any event during the following fifteen (15) days) to discuss possible actions to cure such failure. If a particular Transition Service does not meet the Performance Standard and Regency and HEP determine that it is necessary to re-perform such Transition Service, HEP shall re-perform such Transition Service at no additional cost or expense to Regency. To enable HEP to meet the Performance Standard, Regency shall, and shall cause Regency Sub, the ▇▇▇▇▇▇ LLCs and the Subsidiaries to, ensure that their respective employees cooperate with HEP and provide the same level of response and information as was provided to HEP within the twelve (12) months prior to the Closing Date.
1.5 HEP shall be solely responsible for payment of compensation to its employees engaged to provide any Transition Services. HEP shall assume full responsibility for payment of all taxes or contributions imposed or required under unemployment insurance, social security and income tax laws with respect to such persons. Each of the Parties shall be solely responsible for any injury or loss suffered by any of such Party’s employees or agents in connection with the Transition Services, including any such injury or loss suffered at any of the facilities of the other Party, other than due to the gross negligence, bad faith or willful misconduct of the other Party.
1.6 HEP agrees to reasonably cooperate with, facilitate and advise Regency Sub and its service providers in the provision of the Transition Services during the term of this Agreement and transition to Regency Sub and its service providers independent provision of such Transition Services, as the case may be, as reasonably requested by Regency during the term of this Agreement, including, but not limited to, (a) the provision of relevant output data in HEP’s standard system format to Regency Sub or its service providers, and (b) making appropriate personnel from HEP or affiliates available for periods of time as set forth in the Services Schedule to facilitate the provision of the Transition Services, based on the costs sets forth in the Service Schedule.
1.7 Each of the Parties shall keep books and records of the Transition Services provided or received and reasonable supporting documentation of all charges and expenses incurred and paid in providing or receiving such Transition Services and shall produce written records that verify the dates and times during which the Transition Services are provided is referred were performed. Each Party shall make such books and records reasonably available to herein as the “Transition Period”). Notwithstanding other Party (a) at the foregoingcost of the other Party, if this Agreement or a Service is terminated as a result (b) upon reasonable notice, during normal business hours and at the principal office of Universitythe Party making such books and records available, and (c) subject to reasonably imposed security protocols, limitations and any applicable confidentiality requirements.
1.8 HEP’s failure to timely pay provision of the applicable Services Fees, then if University desires to receive Transition Services during shall not be deemed a transfer of any intellectual property rights with respect to any intellectual property owned by HEP or its affiliates. HEP shall retain any intellectual property rights it may have as of the Transition Period, University must, prior to date hereof. In no case shall the commencement provision of any Transition ServicesService require HEP to violate any of its internal policies, (a) pay all outstanding Services Fees that are including, but not subject to a good faith dispute by University pursuant to Section 5.2 (Delinquent Payments) and (b) pay the estimated Services Fees as reasonably determined by Provider for the Transition Period on a monthly basis in advance. If the actual Services Fees payable for the Transition Period are different than the estimated Services Fees paid by University, then (i) if the actual Services Fees exceed the estimated Services Fees, University will pay the difference within thirty (30) days after the expiration of the Transition Period, and (ii) if the actual Services Fees are less than the estimated Services Fees, Provider will refund to University the difference within thirty (30) days after the expiration of the Transition Period. The Transition Services will be provided at least at the same levels of quality and timeliness of performance as such Services were required to be provided prior to the termination. In connection with a termination of the Agreement, University may, upon written notice to Provider, modify the specific Transition Services to be provided to a subset of the Services provided under this Agreement and, in any case, may reduce the term for the Transition Period to a lesser period. Following any termination, the Parties agree to work in good faith to effectuate an orderly transition of the Services (or any particular Service), with a goal of minimum interruption to Universitylimited to, its students and data protection policies particularly related to its Educational Activities. It is agreed and understood that the licenses granted to Provider in Section 10 (Intellectual Property Rights) shall remain in effect during the Transition Period, provided that University complies with the terms in this Agreement, including timely paying the Services Fees for the Transition Services. If this Agreement expires following the giving by a Party of notice of non-renewal under Section 6.2 (Non-Renewal of Initial Term or Any Renewal Term; Fee Payable) above, or is terminated by University following the giving by University of notice of termination under Section 6.3 (Early Termination of Initial Term; Fee Payable), then during the period between the giving of such notice of non-renewal or termination and the expiration or termination of the Initial Term or expiration of any Renewal Term, the Parties shall likewise work in good faith to wind down their relationship and effectuate an orderly transition of the Services, with a goal of minimum interruption to University, its students and its Educational Activitiescustomer information.
Appears in 1 contract
Sources: Contribution Agreement (Regency Energy Partners LP)
Transition Services. Except in the case of a non-renewal of the Agreement under Section 6.2 (Non-Renewal of Initial Term or Any Renewal Term; Fee Payable) or an early termination of the Agreement by University under Section 6.3 (Early Termination of Initial Term; Fee Payable), if this Agreement or any particular Service is terminated (regardless of the reason for such termination), (a) Pursuant to the Transition Services Agreement and the Transition Services Supplemental Agreement, Enron has agreed to provide certain transition services to CrossCountry and CrossCountry has agreed to provide certain transition services to Enron. On and after the Closing Date, the parties will undertake commercially reasonable efforts to implement the following transition arrangements: (i) Purchaser will cause the Transfer Group Companies to provide certain transition services to Enron as required by Providerthe Transition Services Agreement and the Transition Services Supplemental Agreement on behalf of CrossCountry; (ii) Purchaser will provide, thenor cause the provision of, certain transition services to Seller; (iii) Seller will provide, or cause the provision of, certain transition services to the Transfer Group Companies and/or the Northern Border Companies; and (iv) Seller will request, and use commercially reasonable efforts to have such request honored, that Enron provide any and all transition services to be performed for the Transfer Group Companies and /or the Northern Border Companies as required by the Transition Services Agreement and the Transition Services Supplemental Agreement. Purchaser and Seller agree to cooperate in identifying the transition services contemplated in items (i) through (iv) above and in determining how such transition services will be provided. The parties will use commercially reasonable efforts to memorialize these understandings at University’s written electionClosing in agreements, Provider reasonably acceptable to both parties, titled "NORTHERN BORDER TRANSITION SERVICES AGREEMENT" and "NORTHERN BORDER TRANSITION SERVICES SUPPLEMENTAL AGREEMENT". Such agreements will continue providing follow the format of, and encompass the concepts (including term and price of services) and types of transition services found in, the Transition Services Agreement and the Transition Services Supplemental Agreement.
(b) If the parties do not enter into the Northern Border Transition Services Agreement or the applicable Service) Northern Border Transition Services Supplemental Agreement at Closing, then for a period of up to two (2) years following the termination date, or (b) by University, then, at University’s written election, Provider will continue providing the Services (or applicable Service) for a period of up to ending six (6) months following after the termination date Closing Date (or upon the post-termination services are referred to herein as the “Transition Services,” and the applicable period during which the Transition Services are provided is referred to herein as the “Transition Period”). Notwithstanding the foregoingexecution of such agreements, if this Agreement or a Service is terminated as a result of University’s failure to timely pay the applicable Services Fees, then if University desires to receive Transition Services during the Transition Period, University must, prior to the commencement of any Transition Services, (a) pay all outstanding Services Fees that are not subject to a good faith dispute by University pursuant to Section 5.2 (Delinquent Payments) and (b) pay the estimated Services Fees as reasonably determined by Provider for the Transition Period on a monthly basis in advance. If the actual Services Fees payable for the Transition Period are different than the estimated Services Fees paid by University, then earlier): (i) if Purchaser will cause the actual Services Fees exceed Transfer Group Companies to provide transition services to Enron on substantially the estimated Services Fees, University will pay the difference within thirty (30) days after the expiration of the Transition Period, and same basis as provided prior to Closing; (ii) if Purchaser will provide, or cause the actual Services Fees are less than the estimated Services Feesprovision of, Provider will refund transition services to University the difference within thirty (30) days after the expiration of the Transition Period. The Transition Services will be provided at least at Seller on substantially the same levels of quality and timeliness of performance basis as such Services were required to be provided prior to Closing; (iii) Seller will provide, or the termination. In connection with a termination of cause the Agreementprovision of, University maytransition services to the Transfer Group Companies and/or the Northern Border Companies on substantially the same basis as provided prior to Closing; and (iv) Seller will request, upon written notice and use commercially reasonable efforts to Providerhave such request honored, modify the specific Transition Services that Enron provide any and all transition services to be provided to a subset of the Services provided under this Agreement and, in any case, may reduce the term performed for the Transition Period Transfer Group Companies and/or the Northern Border Companies on substantially the same basis as provided prior to a lesser period. Following any termination, the Parties agree to work in good faith to effectuate an orderly transition of the Services (or any particular Service), with a goal of minimum interruption to University, its students and its Educational Activities. It is agreed and understood that the licenses granted to Provider in Section 10 (Intellectual Property Rights) shall remain in effect during the Transition Period, provided that University complies with the terms in this Agreement, including timely paying the Services Fees for the Transition Services. If this Agreement expires following the giving by a Party of notice of non-renewal under Section 6.2 (Non-Renewal of Initial Term or Any Renewal Term; Fee Payable) above, or is terminated by University following the giving by University of notice of termination under Section 6.3 (Early Termination of Initial Term; Fee Payable), then during the period between the giving of such notice of non-renewal or termination and the expiration or termination of the Initial Term or expiration of any Renewal Term, the Parties shall likewise work in good faith to wind down their relationship and effectuate an orderly transition of the Services, with a goal of minimum interruption to University, its students and its Educational ActivitiesClosing.
Appears in 1 contract
Transition Services. Except in the case of a non-renewal of the Agreement under Section 6.2 (Non-Renewal of Initial Term or Any Renewal Term; Fee Payable) or an early termination of the Agreement by University under Section 6.3 (Early Termination of Initial Term; Fee Payable), if this Agreement or any particular Service is terminated (regardless of the reason for such termination), (a) by ProviderSubject to Section 6.17(b), then, at University’s written election, Provider will continue providing the Services (or the applicable Service) for a period of up to two (2) years as promptly as practicable following the termination dateexecution of this Agreement, Arion and Sphinx agree to negotiate in good faith concerning any additions, modifications, adjustments or clarifications with respect to the schedules set forth in Schedule 6.17 of the Sphinx Disclosure Letter (as may be amended by the Parties in accordance with the terms of this Section 6.17, the “Preliminary Transition Service Schedules”) so as to finalize the Transition Service Schedules to be attached to the Transition Services Agreement.
(b) Notwithstanding the foregoing, Sphinx will not be required to provide a Transition Service that (i) is an Excluded Service; or (ii) either (A) was not provided to the Business by UniversitySphinx, thenincluding in connection with the Shared Services, during the 12-month period preceding the Agreement Date or (B) is not reasonably necessary in connection with the transition of the Business to Arion as conducted during the 12-month period preceding the Agreement Date; provided that, if Sphinx did not provide a Transition Service as set forth in subsection (ii)(A) above, if such Transition Service is reasonably necessary in connection with the transition of the Business to Arion as currently conducted and is so requested by Arion, the parties will negotiate in good faith to establish a Transition Service Schedule (including applicable fees payable to Sphinx in accordance with this Section 6.17) pursuant to which Sphinx will provide an additional Transition Service solely in the form of assistance and cooperation reasonably required to enable a third party service providers to provide all elements of the requested Transition Service, with such third party service provider to be selected and managed (and paid for) by Arion at University’s written electionits sole cost and expense.
(c) Unless otherwise agreed by Arion and Sphinx or set forth in the Preliminary Transition Service Schedules, Provider no Transition Period will continue providing the Services (or applicable Service) last for a period of up to six (6) more than 12 months following the termination date Closing Date (excluding any extensions made to the post-termination services are referred to herein as Transition Period in accordance with the “Transition Services,” and the applicable period during which terms of the Transition Services Agreement).
(d) Arion and Sphinx agree that, unless otherwise provided in the Preliminary Transition Service Schedules, the pricing for any Transition Service shall be equal to the Service Provider’s fully-loaded cost (which shall include actual cost and pro-rated overhead allocation), which will be determined in a manner consistent with the methodology used to calculate fees for similar Transition Services, if any, as set forth in the applicable Pre-Closing Transition Service Schedule.
(e) Any requests to add additional Transition Services to the Preliminary Transition Service Schedules or to make any other modifications, adjustments or clarifications to the Preliminary Transition Service Schedules must be made in writing by the requesting Party within 60 days after the Agreement Date. To the extent that, notwithstanding such good faith efforts, Arion and Sphinx are provided is unable to agree upon the Transition Service Schedules to be attached to the Transition Services Agreement prior to the earlier of 60 days after the Agreement Date and the date this Agreement has been validly terminated pursuant to Article 10, such unresolved matters shall be referred for resolution to herein as the “Transition Period”)chief financial officer of Sphinx, on the one hand, and chief financial officer of Arion, on the other hand, who shall work together in good faith to reach final resolution within 10 days of such referral. Notwithstanding the foregoing, if this Agreement or a Service is terminated as a result of University’s failure to timely pay in the applicable Services Fees, then if University desires to receive Transition Services during the Transition Period, University must, prior to the commencement of any Transition Services, (a) pay all outstanding Services Fees event that are not subject to a good faith dispute by University pursuant to Section 5.2 (Delinquent Payments) and (b) pay the estimated Services Fees as reasonably determined by Provider for the Transition Period on a monthly basis in advance. If the actual Services Fees payable for the Transition Period are different than the estimated Services Fees paid by University, then (i) if the actual Services Fees exceed the estimated Services Fees, University will pay the difference within thirty (30) 120 days after the expiration Agreement Date, neither the Closing has occurred nor this Agreement has been validly terminated pursuant to Article 10, either Arion or Sphinx may request in writing to add additional Transition Services or make other modifications, adjustments or clarifications to the Preliminary Transition Service Schedules that meet the conditions described in Section 6.17(b), and the Parties shall negotiate in good faith concerning such modifications, adjustments or clarifications in accordance with the terms of this Section 6.17; provided that if any such matters remain unresolved as of the Closing, the Parties shall continue such negotiations after Closing in accordance with and subject to the terms of the Transition PeriodServices Agreement.
(f) Except as otherwise expressly provided in the Transition Services Agreement, and subject to Section 2.6, all Shared Services provided to the Business by Sphinx, including pursuant to a Contract that is the subject of Section 2.6 shall cease as of the Closing Date.
(iig) if As promptly as practicable following the actual Services Fees are less than Agreement Date, and solely for the estimated Services Fees, Provider will refund to University purposes of defining the difference within thirty (30damages limitations for Section 6.2(b) days after the expiration of the Transition Period. The Transition Services will be provided at least at the same levels of quality and timeliness of performance as such Services were required to be provided prior to the termination. In connection with a termination of the Agreement, University may, upon written notice to Provider, modify the specific Transition Services to be provided to a subset of the Services provided under this Agreement and, in any case, may reduce the term for the Transition Period to a lesser period. Following any termination, the Parties Arion and Sphinx agree to work negotiate in good faith to effectuate establish an orderly transition estimate of amounts to be paid to Service Provider under the Transition Services Agreement for all applicable Transition Services identified by Arion and Sphinx in the Transition Service Schedules as being within the same functional area (as such areas are identified on Exhibit A of the Transition Services (or any particular ServiceAgreement), with a goal of minimum interruption and at the Closing, subject to UniversitySection 6.17(e), its students and its Educational Activities. It is agreed and understood that the licenses granted Exhibit A to Provider in Section 10 (Intellectual Property Rights) shall remain in effect during the Transition Period, provided that University complies with Services Agreement shall be updated to reflect such agreed upon amounts.
(h) Capitalized terms used in this Section 6.17 but not otherwise defined in this Agreement shall have the meanings ascribed to such terms in this Agreement, including timely paying the Services Fees for the Transition Services. If this Agreement expires following the giving by a Party of notice of non-renewal under Section 6.2 (Non-Renewal of Initial Term or Any Renewal Term; Fee Payable) above, or is terminated by University following the giving by University of notice of termination under Section 6.3 (Early Termination of Initial Term; Fee Payable), then during the period between the giving of such notice of non-renewal or termination and the expiration or termination of the Initial Term or expiration of any Renewal Term, the Parties shall likewise work in good faith to wind down their relationship and effectuate an orderly transition of the Services, with a goal of minimum interruption to University, its students and its Educational ActivitiesServices Agreement.
Appears in 1 contract
Sources: Purchase Agreement (Symantec Corp)
Transition Services. Except in the case of a non-renewal of the Agreement under Section 6.2 (Non-Renewal of Initial Term or Any Renewal Term; Fee Payable) or an early termination of the Agreement by University under Section 6.3 (Early Termination of Initial Term; Fee Payable), if this Agreement or any particular Service is terminated (regardless of the reason for such termination), (a) The Seller and the Purchaser shall negotiate in good faith to finalize, within sixty (60) days following the date of this Agreement, the terms and conditions of a transition services agreement, including the service schedules thereto (the “Transition Services Agreement”), to be entered into by Providerthe Seller and the Purchaser as of the Closing, thenpursuant to which the Seller shall, at University’s written electionafter the Closing, Provider will continue providing provide, or cause to be provided, to the Business certain services that are currently provided by the Seller and its Affiliates to the Business. In the event the Seller and the Purchaser are unable to reach an agreement on a Transition Services Agreement, the Seller and the Purchaser shall enter into the Transition Services Agreement attached as Exhibit 5.06 hereto; provided, that (a) the fees payable by the Purchaser (or the applicable ServiceAcquired Companies) for a period any transition service shall not exceed Seller’s Cost for providing such service (for the avoidance of up to two (2) years following doubt, the termination date, or (b) fees payable by University, then, at University’s written election, Provider will continue providing the Services (or applicable Service) Purchaser for a period of up specific transition service may increase or decrease from time to six (6) months following the termination date (the post-termination services are referred to herein as the “Transition Services,” and the applicable period during which the Transition Services are provided is referred to herein as the “Transition Period”). Notwithstanding the foregoing, if this Agreement or a Service is terminated as a result of University’s failure to timely pay the applicable Services Fees, then if University desires to receive Transition Services during the Transition Period, University must, prior time to the commencement of any Transition Services, (a) pay all outstanding Services Fees that are not subject to a good faith dispute by University pursuant to Section 5.2 (Delinquent Paymentsextent Seller’s Cost for providing such services increases or decreases) and (b) pay the estimated Services Fees as reasonably determined by Provider for indemnification obligations of each of the Seller, on the one hand, or the Purchaser (or the Acquired Companies), on the other hand, under the Transition Period on a monthly basis in advance. If Services Agreement shall not exceed the actual Services Fees payable for aggregate amount of fees paid by the Purchaser (or the Acquired Companies) to the Seller pursuant to the Transition Period Services Agreement. To the Seller’s Knowledge, the services included in the Transition Services Agreement attached hereto as Exhibit 5.06 are different than all of the estimated Services Fees paid by University, then (i) additional services that would be required if the actual Services Fees exceed Acquired Companies were to continue to operate as subsidiaries of the estimated Services Fees, University will pay Seller during the difference within thirty (30) days after the expiration term of the Transition Period, and (ii) if the actual Services Fees are less than the estimated Services Fees, Provider will refund to University the difference within thirty (30) days after the expiration of the Transition Period. The Transition Services will be provided at least at Agreement in substantially the same levels of quality and timeliness of performance manner as such Services were required to be provided they operated immediately prior to the termination. In connection with a termination Closing.
(b) For purposes of this Section 5.06 and the Transition Services Agreement, University may, upon written notice to Provider, modify the specific Transition Services to be provided to a subset of the Services provided under this Agreement and, in any case, may reduce the term for the Transition Period to a lesser period. Following any termination, the Parties agree to work in good faith to effectuate an orderly transition of the Services (or any particular Service)“Seller’s Cost” means, with a goal of minimum interruption respect to University, its students and its Educational Activities. It is agreed and understood that the licenses granted to Provider in Section 10 (Intellectual Property Rights) shall remain in effect during the Transition Period, provided that University complies with the terms in this Agreement, including timely paying the Services Fees for the Transition Services. If this Agreement expires following the giving by a Party of notice of non-renewal under Section 6.2 (Non-Renewal of Initial Term or Any Renewal Term; Fee Payable) above, or is terminated by University following the giving by University of notice of termination under Section 6.3 (Early Termination of Initial Term; Fee Payable), then during the period between the giving of such notice of non-renewal or termination and the expiration or termination of the Initial Term or expiration provision of any Renewal Term, the Parties shall likewise work in good faith to wind down their relationship and effectuate an orderly transition of the Services, with a goal of minimum interruption to University, its students and its Educational Activities.service:
Appears in 1 contract
Sources: Stock Purchase Agreement (Platform Specialty Products Corp)
Transition Services. Except in To compensate Seller and the case of a non-renewal Subsidiaries for services rendered and medicine, drugs, and supplies provided on or before the Closing Date at any of the Agreement under Section 6.2 Hospitals (Non-Renewal of Initial Term the "Transition Services") with respect to patients whose medical care is paid for, in whole or Any Renewal Term; Fee Payable) in part, by Medicare, Medicaid, CHAMPUS, Blue Cross or an early termination any other third party payor who pays on a DRG, case rate or other similar arrangement, and who are admitted to any of the Agreement by University under Section 6.3 Hospitals on or before the Closing Date but who are not discharged until after the Closing Date (Early Termination of Initial Term; Fee Payable"Governmental Program Transition Patients"), if this Agreement or any particular Service is terminated (regardless of the reason for such termination), parties shall take the following action:
(a) As soon as practicable after the Closing Date, Seller shall deliver to Purchaser a statement itemizing the inpatient hospital Transition Services provided by Providerthe Subsidiaries with respect to the operation of the Hospitals on or prior to the Closing Date to Governmental Program Transition Patients. For the Transition Services, thenPurchaser shall pay to Seller an amount equal to the DRG and outlier payments, at University’s written electionthe case rate payment or other similar payment received by Purchaser on behalf of a Governmental Program Transition Patient, Provider will continue providing multiplied by a fraction (the "Fraction"), the numerator of which shall be the total charges for the Transition Services provided to such Governmental Program Transition Patient by Seller and the Subsidiaries and the denominator of which shall be the sum of the total charges for the Transition Services provided to such Governmental Program Transition Patient by Seller and the Subsidiaries plus the total charges for the Transition Services provided to such Governmental Program Transition Patient by Purchaser after the Closing Date. The parties shall reconcile the payments within ninety (or 90) calendar days after both the applicable Service) for a period of up to two tentative and final Medicare cost report settlement and any other payor settlement affecting the Governmental Program Transition Patients (2) years following the termination date, or "Reconciliation").
(b) Subject to Section 11.3(d), payments made pursuant to Section 11.3(a) shall be made to Seller monthly, on the twenty-fifth (25th) day of each month, for payments received by UniversityPurchaser during the previous month, thenaccompanied by copies of remittances and other supporting documentation as is reasonably requested by Seller. Any other payments required to be made by Seller to Purchaser, at University’s written electionor by Purchaser to Seller, Provider will continue providing the Services (or applicable Service) for a period of up to six (6) months following the termination date (the post-termination services are referred to herein as the “Transition Services,” and the applicable period during which the Transition Services are provided is referred to herein as the “Transition Period”). Notwithstanding the foregoingcase may be, if this Agreement or a Service is terminated as a result of University’s failure to timely pay the applicable Services Fees, then if University desires to receive Transition Services during the Transition Period, University must, prior to the commencement of any Transition Services, (a) pay all outstanding Services Fees that are not subject to a good faith dispute by University pursuant to Section 5.2 (Delinquent Payments) and (b) pay the estimated Services Fees as reasonably determined by Provider for the Transition Period on a monthly basis in advance. If the actual Services Fees payable for the Transition Period are different than the estimated Services Fees paid by University, then (i) if the actual Reconciliation, (ii) a notice of program reimbursement with respect to the operations of any Hospital or (iii) other notice from a governmental agency or third party payor with respect to Transition Services Fees exceed the estimated Services Fees, University will pay the difference shall be made within thirty (30) calendar days after the expiration Reconciliation or the receipt of the Transition Periodany such notice, and (ii) if the actual Services Fees are less than the estimated Services Fees, Provider will refund to University the difference within thirty (30) days after the expiration of the Transition Period. The Transition Services will be provided at least at the same levels of quality and timeliness of performance as such Services were required to be provided prior to the terminationapplicable. In connection with a termination of the Agreement, University may, upon written notice to Provider, modify the specific Transition Services to be provided to a subset of the Services provided under this Agreement and, in any case, may reduce the term for the Transition Period to a lesser period. Following any termination, the Parties agree to work in good faith to effectuate an orderly transition of the Services (or any particular Service), with a goal of minimum interruption to University, its students event that Purchaser and its Educational Activities. It is agreed and understood that the licenses granted to Provider in Section 10 (Intellectual Property Rights) shall remain in effect during the Transition Period, provided that University complies with the terms in this Agreement, including timely paying the Services Fees for the Transition Services. If this Agreement expires following the giving by a Party of notice of non-renewal under Section 6.2 (Non-Renewal of Initial Term or Any Renewal Term; Fee Payable) above, or is terminated by University following the giving by University of notice of termination under Section 6.3 (Early Termination of Initial Term; Fee Payable), then during the period between the giving of such notice of non-renewal or termination and the expiration or termination of the Initial Term or expiration of any Renewal Term, the Parties shall likewise work in good faith to wind down their relationship and effectuate an orderly transition of the Services, with a goal of minimum interruption to University, its students and its Educational Activities.Seller are unable to
Appears in 1 contract
Sources: Asset Sale Agreement (Southwest General Hospital Lp)
Transition Services. Except in the case of a non-renewal of the Agreement under Section 6.2 (Non-Renewal of Initial Term or Any Renewal Term; Fee Payable) or an early termination of the Agreement by University under Section 6.3 (Early Termination of Initial Term; Fee Payable), if this Agreement or any particular Service is terminated (regardless of the reason for such termination), (a) During the Transition Period, Daisytek shall use its reasonable best efforts to provide, or cause its Affiliates to use their reasonable best efforts to provide, to PFSweb or its Affiliates all Transition Services in the manner and at a relative level of service consistent in all material respects with that provided by ProviderDaisytek or its Affiliates to the PFS prior to the Contribution Date. PFSweb shall use all commercially reasonable efforts to obtain all such Transition Services from a source other than Daisytek and its Affiliates on or prior to the conclusion of the Transition Period; provided that, if PFSweb cannot obtain any Transition Service from a source other than Daisytek and its Affiliates and such Transition Service is necessary in order to operate the PFS Business in substantially the same manner as it was conducted immediately prior to the Contribution Date, then, at University’s written electionsubject to Section 2.01(e) below, Provider will continue providing the Services Daisytek (or the applicable Serviceits Affiliates) shall provide such Transition Service to PFSweb (or its Affiliates) for a an additional period not to exceed six months.
(b) In consideration of up the provision of Transition Services hereunder, PFSweb shall pay to two Daisytek (2i) years following an amount equal to the termination datecost historically allocated to the PFS Business as of the Contribution Date for such service, adjusted to reflect any changes in the nature, cost or level of the services so provided, or (bii) if no such cost has historically been allocated to the PFS Business for any Transition Service, then an amount equal to that portion of the total cost borne by UniversityDaisytek which Daisytek would have allocated to the PFS Business under its internal allocation formula as of the Contribution Date, thenplus any direct user charges or similar type charges resulting from PFSweb's or its Affiliates' use of such services which are not otherwise recouped by Daisytek hereunder, at University’s written electionplus, Provider will continue providing without duplication, any other reasonable charges necessary to make Daisytek whole for the Services provision of such services.
(or applicable Servicec) Except as otherwise agreed, Daisytek shall invoice PFSweb on a monthly basis for a period of up to six (6) months following the termination date (the post-termination services are referred to herein as the “Transition Services,” and the applicable period during which the Transition Services are to be provided is referred to herein as the “Transition Period”). hereunder, and payment shall be due 30 days after invoice date.
(d) Notwithstanding the foregoing, if this Agreement or a Service is terminated as a result of University’s failure to timely pay the applicable Services Fees, then if University desires to receive (i) for any Transition Services during which include payment of payroll or wages to employees of the Transition PeriodPFS Business, University must, PFSweb shall pay all necessary amounts (including payroll taxes) to Daisytek prior to the commencement payment thereof by Daisytek and (ii) any charges to Daisytek from outside suppliers for the provision of Transition Services shall be submitted by Daisytek to PFSweb for payment and, except as Daisytek may otherwise agree in connection with any individual statement of charges which has been submitted to Daisytek, PFSweb hereby agrees to make payment therefor either to such outside supplier in accordance with the payment terms of such outside supplier or to Daisytek if Daisytek is required to pay such 2 3 outside supplier, (in which event such payment shall be made on or before the date on which Daisytek notifies PFSweb it intends to make payment, or if Daisytek does not provide such notice, immediately after Daisytek provides notice to PFSweb that Daisytek has made such payment).
(e) In the event PFSweb shall request Daisytek to continue to provide any Transition Services, (a) pay all outstanding Services Fees that are not subject to a good faith dispute by University pursuant to Section 5.2 (Delinquent Payments) and (b) pay the estimated Services Fees as reasonably determined by Provider for the Transition Period on a monthly basis in advance. If the actual Services Fees payable for the Transition Period are different than the estimated Services Fees paid by University, then (i) if the actual Services Fees exceed the estimated Services Fees, University will pay the difference within thirty (30) days after Service beyond the expiration of the Transition Period, Daisytek and (ii) if the actual Services Fees are less than the estimated Services Fees, Provider will refund to University the difference within thirty (30) days after the expiration of the Transition Period. The Transition Services will be provided at least at the same levels of quality and timeliness of performance as such Services were required to be provided prior to the termination. In connection with a termination of the Agreement, University may, upon written notice to Provider, modify the specific Transition Services to be provided to a subset of the Services provided under this Agreement and, in any case, may reduce the term for the Transition Period to a lesser period. Following any termination, the Parties agree to work PFSweb shall negotiate in good faith to effectuate an orderly transition of the Services (or any particular Service), with a goal of minimum interruption to University, its students and its Educational Activities. It is agreed and understood that the licenses granted to Provider in Section 10 (Intellectual Property Rights) shall remain in effect during the Transition Period, provided that University complies with at arm's length the terms in this Agreementof any such extension, including timely paying the Services Fees fair market value pricing for the Transition Services. If this Agreement expires following the giving by a Party of notice of non-renewal under Section 6.2 (Non-Renewal of Initial Term or Any Renewal Term; Fee Payable) above, or is terminated by University following the giving by University of notice of termination under Section 6.3 (Early Termination of Initial Term; Fee Payable), then during the period between the giving of all such notice of non-renewal or termination and the expiration or termination of the Initial Term or expiration of any Renewal Term, the Parties shall likewise work in good faith to wind down their relationship and effectuate an orderly transition of the Services, with a goal of minimum interruption to University, its students and its Educational Activitiesservices.
Appears in 1 contract
Transition Services. Except in the case of a non-renewal of the Agreement under Section 6.2 (Non-Renewal of Initial Term or Any Renewal Term; Fee Payable) or an early termination of the Agreement by University under Section 6.3 (Early Termination of Initial Term; Fee Payable), if this Agreement or any particular Service is terminated (regardless of the reason for such termination), (a) by Provider, then, at University’s written election, Provider will continue providing the Services (or the applicable Service) for For a period of up to two 90 days after the Closing (2) years following the termination datesuch period, or (b) by University, then, at University’s written election, Provider will continue providing the Services (or applicable Service) for a period of up to six (6) months following the termination date (the post-termination services are referred to herein as the “Transition Services,” and the applicable period during which the Transition Services are provided is referred to herein as the “Transition Period”), Seller shall provide Buyer with the full-time services of ▇▇▇▇▇ Brake, ▇▇▇▇▇▇ ▇▇▇▇▇▇, J. ▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇ (collectively, the “Personnel”) in connection with the transition of the Business from Seller to Buyer (the “Transition Services”). Notwithstanding The Personnel shall provide the foregoingTransition Services to Buyer at Seller’s headquarters located in Aurora, Colorado. To the extent applicable, Seller shall be responsible for the payment of all Taxes payable with respect to the wages of all Personnel, shall maintain employee and workers’ compensation insurance required by applicable laws with respect to all Personnel and shall maintain and provide all applicable employee benefits for all Personnel. None of the Personnel will be deemed to be employees of Buyer or any of its Affiliates for any purpose. Buyer shall pay Seller a monthly fee for Seller’s provision of the Transition Services in the amount set forth on Schedule 6.15 (the “Fees”); provided, however, that, if any of the Personnel ceases to be employed by Seller during the Transition Period or fails to perform the Transition Services as provided in this Agreement or a Service is terminated as a result of University’s failure to timely pay the applicable Services FeesSection 6.15, then if University desires the Fees shall be reduced by a corresponding amount for such person based on Seller’s payroll records, copies of which have previously been provided by Seller to receive Transition Services Buyer (any such reduction, a “Fee Reduction”); provided, further, that the Fees shall be pro rated for any partial calendar month during the Transition Period, University must, prior to the commencement . Seller shall invoice Buyer in advance of any Transition Services, (a) pay all outstanding Services Fees that are not subject to a good faith dispute by University pursuant to Section 5.2 (Delinquent Payments) and (b) pay the estimated Services Fees as reasonably determined by Provider each calendar month for the Transition Period on a monthly basis in advance. If Services to be provided by the actual Services Fees Personnel for such calendar month, and invoices shall be due and payable for upon the Transition Period are different than the estimated Services Fees paid by University, then later of (i) if 30 days after receipt and (ii) the actual Services Fees exceed the estimated Services Feeslast day of such calendar month; provided, University will pay the difference however, that Seller shall reimburse Buyer within thirty (30) 30 days after the expiration end of each calendar month for any overpayment of Fees by Buyer resulting from any Fee Reduction. Within five business days after the end of the Transition Period, Buyer shall pay Seller the performance bonuses as set forth on Schedule 6.15 (the “Performance Bonuses”). In addition to the Fees and the Performance Bonuses (iiif applicable), Buyer shall pay Seller a sales commission (the “Commission”) for all net product and services revenue relating to the Purchased Assets that closes during the Transition Period and existed on Seller’s forecast and pipeline report dated as of August 10, 2004, a copy of which has previously been provided by Seller to Buyer; provided, however, that all revenue must conform to Buyer’s current revenue recognition policies. The Commission, if the actual Services Fees are less than the estimated Services Feesany, Provider will refund be paid by Buyer to University the difference Seller within thirty (30) 30 days after the expiration of related revenue is recognized and will be calculated in the Transition Periodsame manner as the commission currently paid by Seller to ▇▇▇▇▇ ▇▇▇▇▇▇, except that that all revenue must conform to Buyer’s current revenue recognition policies. The Transition Services will be provided at least at the same levels of quality and timeliness of performance as such Services were required to be provided prior to the termination. In connection with a termination of the Agreement, University may, upon written notice to Provider, modify the specific Transition Services to shall be provided to Buyer in a subset of the Services provided under this Agreement and, in any case, may reduce the term for the Transition Period to a lesser periodsatisfactory and timely manner as determined by Buyer. Following any termination, the Parties agree to work in good faith to effectuate an orderly transition of the Services (or any particular Service), with a goal of minimum interruption to University, its students and its Educational Activities. It is agreed and understood that the licenses granted to Provider in Section 10 (Intellectual Property Rights) shall remain in effect during During the Transition Period, provided that University complies with Seller shall maintain adequate general liability, employee and ▇▇▇▇▇▇▇’▇ compensation insurance for the terms in this Agreement, including timely paying the Services Fees for performance of the Transition Services. If this Agreement expires following the giving by a Party of notice of non-renewal under Section 6.2 (Non-Renewal of Initial Term or Any Renewal Term; Fee Payable) above, or is terminated by University following the giving by University of notice of termination under Section 6.3 (Early Termination of Initial Term; Fee Payable), then during the period between the giving of such notice of non-renewal or termination and the expiration or termination of the Initial Term or expiration of any Renewal Term, the Parties shall likewise work in good faith to wind down their relationship and effectuate an orderly transition of the Services, with a goal of minimum interruption to University, its students and its Educational Activities.
Appears in 1 contract
Transition Services. Except From and after the date hereof and until [*], SBCL will provide necessary and appropriate services other than such services as have been transitioned to Healtheon in order that the case of a non-renewal of the Agreement under Section 6.2 (Non-Renewal of Initial Term or Any Renewal Term; Fee Payable) or an early termination of the Agreement by University under Section 6.3 (Early Termination of Initial Term; Fee Payable), if this Agreement or any particular Service is terminated (regardless of the reason for such termination), (a) by Provider, then, at University’s written election, Provider will continue providing the Services (or the applicable Service) for a period of up to two (2) years following the termination date, or (b) by University, then, at University’s written election, Provider will continue providing the Services (or applicable Service) for a period of up to six (6) months following the termination date (the post-termination services are referred to herein as the “Transition Services,” and the applicable period during which the Transition Agreed Services are provided is referred rendered to herein as the “Transition Period”)SBCL. Notwithstanding the foregoing, if this Agreement or a Service is terminated as a result of University’s failure to timely pay the applicable Services Fees, then if University desires to receive Transition Services during the Transition Period, University must, prior to the commencement of any Transition Services, (a) pay all outstanding Services Fees that are SBCL shall not subject to a good faith dispute by University pursuant to Section 5.2 (Delinquent Payments) and (b) pay the estimated Services Fees as reasonably determined by Provider for the Transition Period on a monthly basis in advance. If the actual Services Fees payable for the Transition Period are different than the estimated Services Fees paid by University, then (i) if the actual Services Fees exceed the estimated Services Fees, University will pay the difference within thirty (30) days after the expiration of the Transition Period, and (ii) if the actual Services Fees are less than the estimated Services Fees, Provider will refund to University the difference within thirty (30) days after the expiration of the Transition Period. The Transition Services will be provided at least at the same levels of quality and timeliness of performance as such Services were required to be provide any services provided prior to by [*] under Assumed Contracts (as defined in the terminationAsset Purchase Agreement). In connection with a termination consideration of such services from the AgreementEffective Date, University may, upon written notice SBCL will invoice Healtheon not more frequently than monthly for all [*] Costs (other than [*]) incurred by SBCL in the provision of such services. Each such invoice shall be accompanied by reasonable documentation relating to Provider, modify charges on such invoice. In the specific Transition event that SBCL is still required to provide any such services after [*] in order for all Agreed Services to be rendered, it shall invoice Healtheon for [*] of all such [*] Costs incurred after [*]; provided that the foregoing [*] in charges shall not apply to a subset the extent such delays are due to the acts of, or one or more failures to act by, SBCL, and Healtheon provides reasonable documentation of such fact. All amounts shown on any such invoice shall be paid by Healtheon, without offset for any amounts which may then be owed by SBCL to Healtheon, within [*] after the date of the Services provided under this Agreement andinvoice. In the event that Healtheon disputes any amount shown due on any such invoice, in Healtheon shall pay timely any caseundisputed amounts and send a Dispute Notice to SBCL with respect to any disputed amounts. Within a period of [*] after the date of the Dispute Notice, may reduce Healtheon shall have the term for right to initiate exercise of Audit Rights with respect to the Transition Period portions of SBCL's books and records that relate to a lesser periodthe subject of the dispute. Following any terminationIn the event that the [*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. parties are unable to resolve the disputed matter, the Parties agree to work matter shall be resolved in good faith to effectuate an orderly transition of the Services (or any particular Service), accordance with a goal of minimum interruption to University, its students and its Educational Activities. It is agreed and understood that the licenses granted to Provider in Section 10 (Intellectual Property Rights) shall remain in effect during the Transition Period, provided that University complies with the terms in this Agreement, including timely paying the Services Fees for the Transition Services. If this Agreement expires following the giving by a Party of notice of non-renewal under Section 6.2 (Non-Renewal of Initial Term or Any Renewal Term; Fee Payable) above, or is terminated by University following the giving by University of notice of termination under Section 6.3 (Early Termination of Initial Term; Fee Payable), then during the period between the giving of such notice of non-renewal or termination and the expiration or termination of the Initial Term or expiration of any Renewal Term, the Parties shall likewise work in good faith to wind down their relationship and effectuate an orderly transition of the Services, with a goal of minimum interruption to University, its students and its Educational Activities16 hereof.
Appears in 1 contract
Sources: Services Agreement (Healtheon Corp)
Transition Services. Except in the case of a non-renewal of the Agreement under Section 6.2 (Non-Renewal of Initial Term or Any Renewal Term; Fee Payable) or an early termination of the Agreement by University under Section 6.3 (Early Termination of Initial Term; Fee Payable), if this Agreement or any particular Service is terminated (regardless of the reason for such termination), (a) At the Closing, Purchaser has paid Seller the Closing Date Cash Consideration and deposited the Escrowed Consideration with JPMorgan, payable by ProviderJPMorgan to Seller upon satisfaction of the conditions set forth in the Escrow Agreement (such Closing Date Cash Consideration and the Escrowed Consideration deposited with JPMorgan are separate and apart from the Earn-Out Consideration, thenwhich is only payable if and to the extent earned under the terms of the Purchase Agreement), but (a) the Purchased Assets of the Business cannot be delivered in full to Purchaser at University’s written election, Provider will continue providing the Services (Closing due to the need to obtain certain consents or the applicable Service) for a period of up to two (2) years following the termination date, or approvals and (b) by UniversityPurchaser is unable to operate the Business on a stand alone basis in time for the beginning of the 2010 tax season because additional time is needed to implement certain operational capabilities. However, thenin order to minimize disruption to the Business for the 2010 tax season and to ensure a smooth transition of the Business from Seller to Purchaser, at Universityfor the period beginning on the date hereof through April 30, 2010 except for (x) services to be provided under Section 5 which shall be through March 31, 2010, (y) services relating to check clearing, ACH services and access and use of Seller’s written electiontelecommunications (including network) infrastructure, Provider will continue providing the Services which shall be through December 31, 2010 or (or applicable Servicez) for a period of up any other term expressly provided in this Agreement as applying to six (6) months following the termination date specified services (the post-termination term “Term” as used herein means the period from the date hereof through one of the foregoing applicable end dates depending on the context), Seller shall provide to, or for the benefit of, Purchaser, the following: (i) the services are referred of all of the Business Employees (as defined below), in the same capacities and at the same rate of compensation as in effect on the date hereof, and all human resources support, welfare benefits and payroll functions as Seller has maintained for such employees immediately before the date hereof, (ii) access to herein as and use of the Leased Office Space, (iii) such equipment, intellectual property (including software, domain names and website access), permits, licenses, postal services, check stock, telecommunications equipment and services, contract rights and all other services of any kind, in each case, that Seller used in the Business immediately before the Closing including the services and other items more specifically described in the remainder of this Agreement (collectively, the “Transition Services,” and ”); provided, notwithstanding the applicable period during which foregoing, the Transition Services are provided is referred to herein as shall not include the origination, purchasing or holding of any RALs (or of any other loans) (collectively, the “Transition PeriodExcluded RAL Activities”). Notwithstanding Seller will provide the Transition Services to Purchaser during the Term for no cost other than those expressly provided in this Agreement.
(b) Seller shall perform the Transition Services consistent in all material respects with the manner in which it provided such services when it operated the Business prior to the Closing. Seller shall perform the Transition Services in a timely and professional manner and in accordance with its customary practices.
(c) For so long as Seller is performing the Transition Services pursuant to this Agreement, and subject to Seller’s compliance with its obligations under this Agreement, Purchaser shall operate the Business, and shall take all actions necessary to enable Seller to perform the Transition Services, in accordance with applicable Law (including, without limitation, any requirements or directives of any Governmental Entity) and in a manner consistent with industry standards and the controls and systems maintained by Purchaser pursuant to Section 2(e) below.
(d) Seller shall retain controls and systems consistent in all material respects with the controls and systems that it had in place prior to Closing as it relates to the services provided by Seller under this Agreement, and Purchaser will not interfere with such control and systems.
(e) During the Term, subject to Seller’s compliance with its obligations under this Agreement, Purchaser shall maintain controls and systems with respect to the Business that are consistent in all material respects with the controls and systems that Seller had maintained with respect to the Business prior to the Closing. Without limiting the generality of the foregoing, if this Agreement or a Service is terminated as a result of University’s failure to timely pay the applicable Services Fees, then if University desires to receive Transition Services during the Transition Period, University must, prior to the commencement of any Transition Services, (a) pay all outstanding Services Fees that are not subject to a good faith dispute by University pursuant to Section 5.2 (Delinquent Payments) and (b) pay the estimated Services Fees as reasonably determined by Provider for the Transition Period on a monthly basis in advance. If the actual Services Fees payable for the Transition Period are different than the estimated Services Fees paid by University, then (i) if the actual Services Fees exceed the estimated Services Fees, University will pay the difference within thirty (30) days after the expiration of the Transition Period, and (ii) if the actual Services Fees are less than the estimated Services Fees, Provider will refund to University the difference within thirty (30) days after the expiration of the Transition Period. The Transition Services will be provided at least at the same levels of quality and timeliness of performance as such Services were required to be provided prior to the termination. In connection Seller’s compliance with a termination of the Agreement, University may, upon written notice to Provider, modify the specific Transition Services to be provided to a subset of the Services provided its obligations under this Agreement and, in any case, may reduce the term for the Transition Period to a lesser period. Following any termination, the Parties agree to work in good faith to effectuate an orderly transition of the Services (or any particular Service), with a goal of minimum interruption to University, its students and its Educational Activities. It is agreed and understood that the licenses granted to Provider in Section 10 (Intellectual Property Rights) shall remain in effect during the Transition Period, provided that University complies with the terms in this Agreement, including timely paying Purchaser shall maintain controls and systems that enable it to operate the Services Fees for Business in accordance with applicable Law (including, without limitation, any requirements or directives of any Governmental Entity) and in a manner consistent with industry standards. Seller shall have full access, on reasonable notice and during business hours, to Purchaser’s books and records relating to the Business, facilities where such books and records are located, information (to the extent not proprietary) regarding network infrastructure that services the Business and agents and employees involved with servicing the Business, in each case, to allow Seller to determine Purchaser’s compliance with this Agreement.
(f) If the parties omitted any service from the definition of “Transition Services. If this Agreement expires following ” but which is reasonably required from Seller in order for Purchaser to operate the giving by a Party of notice of non-renewal under Section 6.2 Business during the Term consistent with Seller’s past practices (Non-Renewal of Initial Term or Any Renewal Term; Fee Payable) above, or is terminated by University following other than the giving by University of notice of termination under Section 6.3 (Early Termination of Initial Term; Fee PayableExcluded RAL Activities), then during the period between the giving such services shall be deemed to be “Transition Services” for purposes of such notice of non-renewal or termination and the expiration or termination of the Initial Term or expiration of any Renewal Term, the Parties shall likewise work in good faith to wind down their relationship and effectuate an orderly transition of the Services, with a goal of minimum interruption to University, its students and its Educational Activitiesthis Agreement.
Appears in 1 contract
Sources: Business Transition Agreement (Pacific Capital Bancorp /Ca/)
Transition Services. Except in the case of a non-renewal of the Agreement under Section 6.2 (Non-Renewal of Initial Term or Any Renewal Term; Fee Payable) or an early termination of the Agreement by University under Section 6.3 (Early Termination of Initial Term; Fee Payable), if this Agreement or any particular Service is terminated (regardless of the reason for such termination), (a) During the Transition Period, Daisytek shall use its reasonable best efforts to provide, or cause its Affiliates to use their reasonable best efforts to provide, to PFSweb or its Affiliates all Transition Services in the manner and at a relative level of service consistent in all material respects with that provided by ProviderDaisytek or its Affiliates to the PFS prior to the Contribution Date. PFSweb shall use all commercially reasonable efforts to obtain all such Transition Services from a source other than Daisytek and its Affiliates on or prior to the conclusion of the Transition Period; provided that, if PFSweb cannot obtain any Transition Service from a source other than Daisytek and its Affiliates and such Transition Service is necessary in order to operate the PFS Business in substantially the same manner as it was conducted immediately prior to the Contribution Date, then, at University’s written electionsubject to Section 2.01(e) below, Provider will continue providing the Services Daisytek (or the applicable Serviceits Affiliates) shall provide such Transition Service to PFSweb (or its Affiliates) for a an additional period not to exceed six months.
(b) In consideration of up the provision of Transition Services hereunder, PFSweb shall pay to two Daisytek (2i) years following an amount equal to the termination datecost historically allocated to the PFS Business as of the Contribution Date for such service, adjusted to reflect any changes in the nature, cost or level of the services so provided, or (bii) if no such cost has historically been allocated to the PFS Business for any Transition Service, then an amount equal to that portion of the total cost borne by UniversityDaisytek which Daisytek would have allocated to the PFS Business under its internal allocation formula as of the Contribution Date, thenplus any direct user charges or similar type charges resulting from PFSweb's or its Affiliates' use of such services which are not otherwise recouped by Daisytek hereunder, at University’s written electionplus, Provider will continue providing without duplication, any other reasonable charges necessary to make Daisytek whole for the Services provision of such services.
(or applicable Servicec) Except as otherwise agreed, Daisytek shall invoice PFSweb on a monthly basis for a period of up to six (6) months following the termination date (the post-termination services are referred to herein as the “Transition Services,” and the applicable period during which the Transition Services are to be provided is referred to herein as the “Transition Period”). hereunder, and payment shall be due 30 days after invoice date.
(d) Notwithstanding the foregoing, if this Agreement or a Service is terminated as a result of University’s failure to timely pay the applicable Services Fees, then if University desires to receive (i) for any Transition Services during which include payment of payroll or wages to employees of the Transition PeriodPFS Business, University must, PFSweb shall pay all necessary amounts (including payroll taxes) to Daisytek prior to the commencement payment thereof by Daisytek and (ii) any charges to Daisytek from outside suppliers for the provision of Transition Services shall be submitted by Daisytek to PFSweb for payment and, except as Daisytek may otherwise agree in connection with any individual statement of charges which has been submitted to Daisytek, PFSweb hereby agrees to make payment therefor either to such outside supplier in accordance with the payment terms of such outside supplier or to Daisytek if Daisytek is required to pay such outside supplier, (in which event such payment shall be made on or before the date on which Daisytek notifies PFSweb it intends to make payment, or if Daisytek does not provide such notice, immediately after Daisytek provides notice to PFSweb that Daisytek has made such payment).
(e) In the event PFSweb shall request Daisytek to continue to provide any Transition Services, (a) pay all outstanding Services Fees that are not subject to a good faith dispute by University pursuant to Section 5.2 (Delinquent Payments) and (b) pay the estimated Services Fees as reasonably determined by Provider for the Transition Period on a monthly basis in advance. If the actual Services Fees payable for the Transition Period are different than the estimated Services Fees paid by University, then (i) if the actual Services Fees exceed the estimated Services Fees, University will pay the difference within thirty (30) days after Service beyond the expiration of the Transition Period, Daisytek and (ii) if the actual Services Fees are less than the estimated Services Fees, Provider will refund to University the difference within thirty (30) days after the expiration of the Transition Period. The Transition Services will be provided at least at the same levels of quality and timeliness of performance as such Services were required to be provided prior to the termination. In connection with a termination of the Agreement, University may, upon written notice to Provider, modify the specific Transition Services to be provided to a subset of the Services provided under this Agreement and, in any case, may reduce the term for the Transition Period to a lesser period. Following any termination, the Parties agree to work PFSweb shall negotiate in good faith to effectuate an orderly transition of the Services (or any particular Service), with a goal of minimum interruption to University, its students and its Educational Activities. It is agreed and understood that the licenses granted to Provider in Section 10 (Intellectual Property Rights) shall remain in effect during the Transition Period, provided that University complies with at arm's length the terms in this Agreementof any such extension, including timely paying the Services Fees fair market value pricing for the Transition Services. If this Agreement expires following the giving by a Party of notice of non-renewal under Section 6.2 (Non-Renewal of Initial Term or Any Renewal Term; Fee Payable) above, or is terminated by University following the giving by University of notice of termination under Section 6.3 (Early Termination of Initial Term; Fee Payable), then during the period between the giving of all such notice of non-renewal or termination and the expiration or termination of the Initial Term or expiration of any Renewal Term, the Parties shall likewise work in good faith to wind down their relationship and effectuate an orderly transition of the Services, with a goal of minimum interruption to University, its students and its Educational Activitiesservices.
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Transition Services. Except Promptly after the date hereof, the parties shall negotiate in good faith the terms, duration and cost of a transition services agreement (the “Transition Services Agreement”). The general principles to be applicable to the Transition Services Agreement shall be as follows:
(i) Parent, Seller and the Retained Subsidiaries shall provide to Purchaser those services provided to the Business or the Transferred Subsidiaries on or prior to the date hereof or otherwise reasonably requested by Purchaser in order to allow for the operation of the Business in the case Ordinary Course of a non-renewal of Business, including (A) shared facility space at Parent’s offices in Westland, Michigan, (B) finance and accounting support services, including payroll processing, accounts payable processing, accounting, Hyperion system support, credit, collections and cash application services, and bank/lock box transition, (C) information technology application support services, including system operations and support and specifically requested special projects, and (D) information technology data processing services, including software services, fixed asset systems, and hosting, maintenance, collocation, Internet connection, tape storage/disaster recovery and router maintenance services (the Agreement “Services”);
(ii) Purchaser will be billed for services provided by (A) third party vendors under Section 6.2 the software license agreements between QAD, Inc. and Parent, including maintenance and licensing, and (Non-Renewal of Initial Term B) and data, voice, cellular and Blackberry services (the “Third Party Services”) either directly by the vendors or Any Renewal Term; Fee Payableby Parent or Seller presenting vendor invoices to Purchaser for reimbursement;
(iii) or All Services to be provided by Parent, Seller and the Retained Subsidiaries (excluding the direct billed Third Party Services noted in (ii) above) shall be provided at their costs historically charged to the Business for such Service or, for all Services which were not previously charged to the Business, for no charge for the six month period after the closing and for the period thereafter for an early termination of the Agreement by University under Section 6.3 aggregate amount for all such Services not to exceed Eighty Eight Thousand Dollars (Early Termination of Initial Term; Fee Payable$88,000), if this Agreement or any particular Service is terminated which aggregate amount shall be allocated among specific Services in a mutually agreeable manner;
(regardless of the reason for such termination), (aiv) by Provider, then, at University’s written election, Provider will continue providing the Services (or the applicable Service) shall be made available for a period minimum of up to two (2) years following the termination date, or (b) by University, then, at University’s written election, Provider will continue providing the Services (or applicable Service) for a period of up to six (6) months, with the ability of Purchaser to extend such Service for a period not to exceed twelve (12) months following from Closing. The general principle will be for Purchaser to migrate away from utilizing a particular Service as soon as reasonably practicable and commercially reasonable; and
(v) Purchaser shall be permitted to terminate any one or more of the Services upon fifteen (15) days prior notice of its intention to terminate such Services, and such termination date (the post-termination services are referred to herein as the “Transition Services,” of such Services shall not in and the applicable period during which of itself, terminate the Transition Services are provided is referred to herein as the “Transition Period”). Notwithstanding the foregoing, if this Agreement or a Service is terminated as a result of University’s failure to timely pay the applicable Services Fees, then if University desires to receive Transition Services during the Transition Period, University must, prior to the commencement of any Transition Services, (a) pay all outstanding Services Fees that are not subject to a good faith dispute by University pursuant to Section 5.2 (Delinquent Payments) and (b) pay the estimated Services Fees as reasonably determined by Provider for the Transition Period on a monthly basis in advance. If the actual Services Fees payable for the Transition Period are different than the estimated Services Fees paid by University, then (i) if the actual Services Fees exceed the estimated Services Fees, University will pay the difference within thirty (30) days after the expiration of the Transition Period, and (ii) if the actual Services Fees are less than the estimated Services Fees, Provider will refund to University the difference within thirty (30) days after the expiration of the Transition Period. The Transition Services will be provided at least at the same levels of quality and timeliness of performance as such Services were required to be provided prior to the termination. In connection with a termination of the Agreement, University may, upon written notice to Provider, modify the specific Transition Services to be provided to a subset of the Services provided under this Agreement and, in any case, may reduce the term for the Transition Period to a lesser period. Following any termination, the Parties agree to work in good faith to effectuate an orderly transition of the Services (or any particular Service), with a goal of minimum interruption to University, its students and its Educational Activities. It is agreed and understood that the licenses granted to Provider in Section 10 (Intellectual Property Rights) shall remain in effect during the Transition Period, provided that University complies with the terms in this Agreement, including timely paying the Services Fees for the Transition Services. If this Agreement expires following the giving by a Party of notice of non-renewal under Section 6.2 (Non-Renewal of Initial Term or Any Renewal Term; Fee Payable) above, or is terminated by University following the giving by University of notice of termination under Section 6.3 (Early Termination of Initial Term; Fee Payable), then during the period between the giving of such notice of non-renewal or termination and the expiration or termination of the Initial Term or expiration of any Renewal Term, the Parties shall likewise work in good faith to wind down their relationship and effectuate an orderly transition of the Services, with a goal of minimum interruption to University, its students and its Educational Activities.
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Transition Services. Except in the case of a non-renewal of the Agreement under Section 6.2 (Non-Renewal of Initial Term or Any Renewal Term; Fee Payable) or an early termination of the Agreement by University under Section 6.3 (Early Termination of Initial Term; Fee Payable), if this Agreement or any particular Service is terminated (regardless of the reason for such termination), (a) by ProviderDuring the Transition Period and on the terms and subject to the conditions of this Agreement, thenthe Sellers shall, at University’s written electionand shall cause the Affiliated Trucking Companies to, Provider will continue providing to operate and manage the Services (or Business in substantially the applicable Service) for a period of up same manner in which the Sellers operated the Business prior to two (2) years following the termination date, or (b) by University, then, at University’s written election, Provider will continue providing the Services (or applicable Service) for a period of up to six (6) months following the termination date hereof (the post-termination services are operation and management of the Business shall be referred to herein as the “Transition Services,” and the applicable period during which the Transition Services are provided is referred to herein as the “Transition Period”). Notwithstanding The Transition Services shall include, but not be limited to: (i) (A) Sellers will provide to the foregoingPurchasers access and use of the services of all Sellers’ employees and independent contractors utilized in the Business by Sellers prior to the date hereof (with the exception of the Key Employees who have accepted employment with either Purchaser) (the “Leased Workers”) to provide management, if this Agreement or administrative, logistical, and technical services, in addition to those described in clause (ii) below, to each Purchaser. Each Leased Worker who is an employee of a Service is terminated as a result Seller shall devote one hundred percent (100%) of University’s failure normal working hours each week to timely pay the applicable Services FeesPurchaser during the Transition Period; (B) The Leased Workers shall remain subject to the terms of their at-will employment with Sellers. Sellers will not terminate any Leased Worker without the written consent of the applicable Purchaser, then if University desires except in situations that require immediate discharge to preserve the integrity, safety, or general security of the workplace, the employees, or the Purchased Assets. Sellers shall give the applicable Purchaser prompt written notice of any resignation or other termination of any Leased Worker; (C) Each Leased Worker shall receive Transition Services base salary or wages and other compensation consistent with Sellers’ practices, all of which shall be paid by Sellers; provided, however, that a Leased Worker shall not receive an increase in base salary or wages or any bonus or incentive compensation during the Transition Period, University mustexcept as approved by Purchasers; and (D) Sellers shall administer and/or provide all employer services with respect to the Leased Workers, including, without limitation (I) payment of salary/wages and employee benefits; (II) payroll processing services; and (III) administration of required federal, state, and local employee payments or withholding from wages, including remittance of employment taxes to federal, state, and local taxing authorities.
(ii) Sellers shall use commercially reasonable efforts to cause the Leased Workers to perform the following duties for the benefit of each Purchaser, in the same manner as they performed such duties for the Sellers’ benefit prior to the commencement of any Transition Services, Closing: (aA) pay servicing all outstanding Services Fees that are not subject to a good faith dispute by University pursuant to Section 5.2 (Delinquent Payments) and (b) pay the estimated Services Fees as reasonably determined by Provider for the Transition Period on a monthly basis in advance. If the actual Services Fees payable for the Transition Period are different than the estimated Services Fees paid by University, then (i) if the actual Services Fees exceed the estimated Services Fees, University will pay the difference within thirty (30) days after the expiration customers of the Transition Period, and (ii) if the actual Services Fees are less than the estimated Services Fees, Provider will refund to University the difference within thirty (30) days after the expiration of the Transition Period. The Transition Services will be provided at least at Business in the same levels of quality and timeliness of performance manner as such Services customers were required to be provided serviced prior to the terminationClosing, including without limitation, (1) using the same facilities, assets and employees in connection with such servicing and (2) using the same level of efforts as the Sellers’ employees used prior to the Closing to collect all vendor and trade accounts receivable arising from the Business on or after the Closing (the “Accounts Receivable”) for the sole benefit of each Purchaser; and
(iii) providing access to and use of the employees and independent contractors of the Affiliated Trucking Companies in connection with providing the Transition Services and assisting in the transition of all employee and independent contractor relationships of the Business and using commercially reasonable efforts to keep such relationships intact; (iv) providing assistance to the Purchasers to retain the customer, supplier, vendor, service provider and other business relationships of the Business and complying with all commercially reasonable requests of the Purchasers with respect to such retention efforts; (v) utilizing, engaging and compensating the Affiliated Trucking Companies in substantially the same manner as the Affiliated Trucking Companies were utilized, engaged and compensated by the Sellers prior to the Closing; (vi) maintaining all employment practices liability insurance and workers’ compensation insurance coverages pursuant to the same insurance policies with respect to the Business and its employees as in effect immediately prior to the Closing (or renewals thereof). In connection with a termination the foregoing, effective as of the AgreementClosing Date, University maythe Sellers and the Affiliated Trucking Companies agree to promptly add each Purchaser as an additional insured on all such policies and shall promptly provide the Purchasers with evidence of same; and (vii) maintaining all Licenses in the same manner necessary to operate the Business in which such Licenses were maintained immediately prior to the Closing, upon written notice and assisting the Purchasers with, as may be applicable, (A) the transition of Sellers’ Licenses to Provider, modify the specific Transition Services to be provided to a subset applicable Purchaser and (B) obtaining new Licenses in the name of the Services provided under this Agreement and, in any case, may reduce the term for the Transition Period to a lesser period. Following any termination, the Parties agree to work in good faith to effectuate an orderly transition of the Services (or any particular Service), with a goal of minimum interruption to University, its students and its Educational Activities. It is agreed and understood that the licenses granted to Provider in Section 10 (Intellectual Property Rights) shall remain in effect during the Transition Period, provided that University complies with the terms in this Agreement, including timely paying the Services Fees for the Transition Services. If this Agreement expires following the giving by a Party of notice of non-renewal under Section 6.2 (Non-Renewal of Initial Term or Any Renewal Term; Fee Payable) above, or is terminated by University following the giving by University of notice of termination under Section 6.3 (Early Termination of Initial Term; Fee Payable), then during the period between the giving of such notice of non-renewal or termination and the expiration or termination of the Initial Term or expiration of any Renewal Term, the Parties shall likewise work in good faith to wind down their relationship and effectuate an orderly transition of the Services, with a goal of minimum interruption to University, its students and its Educational Activitiesapplicable Purchaser.
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Transition Services. Except in the case of a non-renewal of the Agreement under Section 6.2 (Non-Renewal of Initial Term or Any Renewal Term; Fee Payable) or an early termination of the Agreement by University under Section 6.3 (Early Termination of Initial Term; Fee Payable), if this Agreement or any particular Service is terminated (regardless of the reason for such termination), (a) by ProviderFor the period after the Closing Date until Buyer otherwise notifies Stockholder in writing, then, at University’s written election, Provider will continue providing such period not to exceed one (1) year after the Services Closing Date (or the applicable Service) for a period of up to two (2) years following the termination date, or (b) by University, then, at University’s written election, Provider will continue providing the Services (or applicable Service) for a period of up to six (6) months following the termination date (the post-termination services are referred to herein as the “Transition Services,” and the applicable period during which the Transition Services are provided is referred to herein as the “Transition Period”). Notwithstanding , Stockholder shall provide to Buyer any administrative services reasonably requested by Buyer in order to continue the foregoingBusiness (the “Transition Services”); provided, if this Agreement or a Service is terminated as a result of University’s failure to timely pay however, that the applicable Services Fees, then if University desires to receive Transition Services during shall not include (i) any services not provided by Stockholder to the Business in the ordinary course as of the Closing, or (ii) any legal, environmental, medical emergency response, OSHA compliance or import-export services. During the Transition Period, University mustBuyer shall use its commercially reasonable efforts to cease the Transition Services by eliminating the need for, prior providing to the commencement of any Transition Servicesitself, (a) pay all outstanding Services Fees that are not subject to a good faith dispute by University pursuant to Section 5.2 (Delinquent Payments) and or otherwise obtaining, such services.
(b) pay Buyer shall reimburse Stockholder for all of Stockholder’s out-of-pocket expenses (including, without limitation, materials costs consumed in providing such services), all to the estimated Services Fees as extent reasonably determined by Provider for incurred and necessary to provide the Transition Period on a monthly basis in advanceServices. If the actual Any reimbursements required to be made by Buyer to Stockholder for Transition Services Fees payable for the Transition Period are different than the estimated Services Fees paid by University, then (i) if the actual Services Fees exceed the estimated Services Fees, University will pay the difference shall be made to Stockholder within thirty (30) days after B▇▇▇▇’s receipt of Stockholder’s invoices therefor, which invoices shall include supporting documentation providing, in reasonable detail, a description of all amounts subject to reimbursement.
(c) In the expiration event of any dispute between the parties regarding the scope, reasonableness, or cost of any Transition PeriodServices or the related reimbursement under this Section 6.10 (a “Dispute”), the parties shall first attempt in good faith to promptly resolve such Dispute. If the dispute is not resolved within ten (10) Business Days after initiation of such discussions, then the parties agree to submit the Dispute to non-binding mediation administered by a mutually agreed upon mediator or, failing such agreement within five (5) Business Days, by a mediator appointed by the American Arbitration Association pursuant to its Commercial Mediation Procedures. The mediation shall take place in Prosper, Texas, unless otherwise agreed by the parties in writing, and (ii) if the actual Services Fees are less than the estimated Services Fees, Provider will refund to University the difference shall be concluded within thirty (30) days after the expiration of the Transition Period. The Transition Services will be provided at least at the same levels of quality and timeliness of performance as such Services were required to be provided prior to the termination. In connection with a termination mediator’s appointment, unless extended by mutual agreement of the Agreement, University may, upon written notice to Provider, modify the specific Transition Services to be provided to a subset of the Services provided under this Agreement and, in any case, may reduce the term for the Transition Period to a lesser period. Following any termination, the Parties agree to work in good faith to effectuate an orderly transition of the Services (or any particular Service), with a goal of minimum interruption to University, its students and its Educational Activities. It is agreed and understood that the licenses granted to Provider in Section 10 (Intellectual Property Rights) shall remain in effect during the Transition Period, provided that University complies with the terms in this Agreement, including timely paying the Services Fees for the Transition Services. If this Agreement expires following the giving by a Party of notice of non-renewal under Section 6.2 (Non-Renewal of Initial Term or Any Renewal Term; Fee Payable) above, or is terminated by University following the giving by University of notice of termination under Section 6.3 (Early Termination of Initial Term; Fee Payable), then during the period between the giving of such notice of non-renewal or termination and the expiration or termination of the Initial Term or expiration of any Renewal Term, the Parties shall likewise work in good faith to wind down their relationship and effectuate an orderly transition of the Services, with a goal of minimum interruption to University, its students and its Educational Activitiesparties.
Appears in 1 contract
Transition Services. Except in the case of a non-renewal of the Agreement under Section 6.2 (Non-Renewal of Initial Term or Any Renewal Term; Fee Payable) or an early termination of the Agreement by University under Section 6.3 (Early Termination of Initial Term; Fee Payable), if this Agreement or any particular Service is terminated (regardless of the reason for such termination), (a) by ProviderSubject to and on the terms set forth in this Agreement, then, at University’s written election, Provider will continue providing the Services (Servicer shall perform or cause to be performed with respect to the applicable Service) for a period of up to two (2) years following the termination date, or (b) by University, then, at University’s written election, Provider will continue providing the Services (or applicable Service) for a period of up to six (6) months following the termination date Diamond Business certain transition services as set forth on Exhibit A (the post-termination services are referred to herein as “Service Exhibit”) hereto (such services, the “Transition Services,” and each, a “Transition Service”), which Service Exhibit is incorporated herein by reference, for the time periods described in this Agreement. In consideration for the performance of the Transition Services, and subject to the provisions of Section 4, the Buyer shall pay (or cause to be paid) to the Servicer the fees set forth on the Service Exhibit (the “Service Fees”) in accordance with Section 3. Subject to the provisions of Section 4, the Servicer shall provide each of the Transition Services until the earlier of (i) the date that is one year after the date of this Agreement, or such other date as the Parties may reasonably agree in writing is necessary to accomplish the transition of the Diamond Business and the transactions contemplated by the Business Combination Agreement and (ii) the date set forth on the Service Exhibit with respect to such Transition Service, or such other date as the Parties may reasonably agree in writing with respect to such Transition Service (as applicable, the “Service Termination Date”).
(b) The Service Exhibit sets forth the monthly Service Fee payable for each Transition Service for each calendar month during the term of this Agreement.
(c) In addition to the Service Fees, upon receipt of reasonable documentation, the Buyer shall reimburse the Servicer for (i) any reasonable third-party fees or expenses and (ii) all reasonable out-of-pocket costs and expenses, including all reasonable overtime payments to Servicer employees (collectively, the “Expenses”), in each case, incurred by the Servicer in connection with and attributable to providing the Transition Services, including reasonable costs incurred pursuant to contracts with third parties under which the benefit is provided to the Buyer as part of the Services, reasonable out-of-pocket travel expenses and costs in obtaining third-party consents (including licenses) that the Parties agree to pursue pursuant to Section 1(d) (but not, for the avoidance of doubt, expenses and costs in obtaining other third-party consents); provided, however, that “Expenses” shall be determined without duplication of any applicable period during which Services Fees; provided, further, that, notwithstanding anything to the contrary herein, the Buyer shall have no obligation to reimburse the Servicer for any individual Expense exceeding $25,000 without the prior written consent of the Buyer. For the avoidance of doubt, in the event fees and expenses contemplated by the preceding sentence are incurred in connection with the provision of the Transition Services and with other operations of the Servicer or its Affiliates, only the portion of such fees and expenses reasonably allocable to the provision of Transition Services shall be deemed to be “Expenses” and reimbursable by the Buyer hereunder (subject to the preceding sentence).
(d) To the extent that (i) the Transition Services include Software or other technology licensed from third parties, or (ii) the Transition Services are provided procured or derive from third parties, it is referred to herein as the “Transition Period”). Notwithstanding the foregoing, if this Agreement or a Service is terminated as a result of University’s failure to timely pay the applicable Services Fees, then if University desires to receive Transition Services during intended and agreed that the Transition Period, University must, prior to the commencement of any Transition Services, (a) pay all outstanding Services Fees that are not subject to a good faith dispute by University pursuant to Section 5.2 (Delinquent Payments) and (b) pay the estimated Services Fees as reasonably determined by Provider for the Transition Period on a monthly basis in advance. If the actual Services Fees payable for the Transition Period are different than the estimated Services Fees paid by University, then (i) if the actual Services Fees exceed the estimated Services Fees, University will pay the difference within thirty (30) days after the expiration of the Transition Period, and (ii) if the actual Services Fees are less than the estimated Services Fees, Provider will refund to University the difference within thirty (30) days after the expiration of the Transition Period. The Transition Services will be provided at least at the same levels of quality and timeliness of performance as such Services were required to be provided prior to the termination. In connection with a termination of the Agreement, University may, upon written notice to Provider, modify the specific Transition Services to be provided to a subset of the Services provided under this Agreement shall be within the scope and on the terms and conditions established by the third-party licensors or providers. This Agreement is not intended to constitute a sublicense of any Software or technology provided by third-party licensors or to create a commercial service bureau in favor of the Buyer or its customers, but instead is a services agreement intended to enable the Diamond Business to wind up its use of the software applications set forth on the Service Exhibit. In the event that the Servicer encounters a restriction or objection from a third-party licensor or supplier that prevents the Servicer, as a legal or practical matter from providing any Transition Service as contemplated by this Agreement, then the Servicer shall reasonably promptly so notify the Buyer, and the Parties will confer to decide upon a mutually-agreeable solution, which may include seeking necessary consents or licenses, replacing the affected resource or adopting a work-around; provided, that in no event will the Servicer be required to provide any such Transition Service in violation of its obligations under any third-party agreement and provided, further, that in the event that the Parties mutually agree not to seek a consent following such conference, the provisions of Section 8(c) shall apply to any claims arising out of such election. The Servicer shall use its commercially reasonable efforts during the term of this Agreement to not enter into or become bound by an agreement or other arrangement that includes such a restriction. Other than as set forth in the preceding sentence, the Servicer gives no assurance about whether such a restriction or objection can or may arise and, in any caseevent, may reduce until such alternative approach is agreed upon by the term for Parties or the Transition Period problem is otherwise resolved to a lesser period. Following any terminationthe satisfaction of the Parties, the Parties agree Servicer shall be excused from providing the affected Transition Service and, notwithstanding anything to work in good faith the contrary herein, the Buyer shall have no obligation to effectuate an orderly transition of the Services (or pay any particular Service), with a goal of minimum interruption to University, its students and its Educational Activities. It is agreed and understood Service Fee for any such Transition Service that the licenses granted to Provider Servicer does not provide. To the extent an agreed-upon alternative approach results in Section 10 (Intellectual Property Rights) shall remain the incurrence of additional expense beyond what was incurred in effect during the Transition Period, provided that University complies connection with the terms underlying Transition Service, the Buyer shall make prompt payment to the Servicer in the amount of such additional expense in accordance with Section 3 hereof.
(e) Notwithstanding anything to the contrary in this Agreement, including timely paying the Services Fees for Buyer acknowledges that the Servicer may be providing services similar to the Transition Services. If this Agreement expires following Services for itself and its Affiliates, and the giving by a Party of notice of non-renewal under Section 6.2 Servicer reserves the right to modify one or more Transition Services if such modifications are: (Non-Renewal of Initial Term or Any Renewal Term; Fee Payablei) above, or is terminated by University following the giving by University of notice of termination under Section 6.3 (Early Termination of Initial Term; Fee Payable), then during the period between the giving applicable to all other recipients of such notice Transition Service or services similar to such Transition Service; provided, that such modifications do not have a material adverse impact on the Buyer or its Subsidiaries and do not increase the Expenses in any material respect; or (ii) otherwise necessary to comply with applicable Law or other requirements of non-renewal or termination and the expiration or termination of the Initial Term or expiration of any Renewal Term, the Parties shall likewise work in good faith to wind down their relationship and effectuate an orderly transition of the Services, with a goal of minimum interruption to University, its students and its Educational ActivitiesGovernmental Entity.
Appears in 1 contract
Sources: Transition Services Agreement (Blue Owl Capital Inc.)