EXHIBIT 10.10
INFORMATION TECHNOLOGY SERVICES AGREEMENT
This Agreement is dated as of the 1st day of February, 1999, by and between Xxxx
Corporation, a Virginia corporation, having its principal place of business at
000 Xxxxxxx 0, Xxxxxxx, Xxxxxxxxxxx 00000 ("XXXX") and Arch Chemicals, Inc., a
Virginia corporation, having its principal place of business at 000 Xxxxxxx 0,
Xxxxxxx, Xxxxxxxxxxx 00000 ("ARCH").
In consideration of the payments to be made and services to be performed
hereunder, the parties agree as follows:
ARTICLE 1 PRELIMINARY STATEMENT
This Agreement is being made and entered into with reference to the following
facts:
(a) XXXX and ARCH have entered into a Distribution Agreement dated as of
February __, 1999 (the "Distribution Agreement"), pursuant to which
XXXX has agreed to transfer to Arch certain assets and businesses
constituting the Arch Assets and the Arch Business, respectively
(each as defined in the Distribution Agreement).
(b) Included in the Arch Business being transferred from XXXX to ARCH
will be certain personnel and other assets previously used by Xxxx to
provide information technology ("IT") services to itself.
(c) Following the Distribution (as defined in the Distribution
Agreement), XXXX desires that ARCH provide certain IT services to
XXXX and its subsidiaries, on the terms and conditions provided in
this Agreement.
(d) ARCH has agreed to provide these IT services and to do such other
acts and things as described in this Agreement for a minimum two (2)
year period, and thereafter as agreed by the parties upon the terms
and conditions set forth below.
(e) XXXX has agreed that ARCH will have access to the XXXX mainframe and
certain other XXXX assets described herein for the term of this
Agreement.
The following is a list of Schedules attached to and forming a part of this
Agreement:
Schedule A - Statements of Work and Services
Schedule A1: Relationship Management
Schedule A2: Enterprise Operations Center
Schedule A3: Desktop/End-User device Services
Schedule A4: Help Desk Devices
Schedule A5: SAP Managed Operations
Schedule A6: Application Services
Schedule A7: Data Communication Services
Schedule A8: Voice Communication Services
Schedule A9: Year 2000 Program Management
Schedule A10: Internet / Intranet Services
Schedule A11: Business and Technical Information Services
Schedule B - Plan To Define Performance Standards
Schedule C - Pricing/Fees
Schedule D - Disaster Recovery
Schedule E - Personnel Matters
- East Xxxxx, Bethalto and Norwalk IT Employees
- Designation of Account Manager
Schedule G - Asset Allocations, Shared Contracts
Schedule G1: Xxxx & Arch Data Center Physical Assets
Schedule G2: Division of Xxxx & Arch Software Contracts
Schedule G3: Division of Xxxx & Arch Norwalk IT Assets
Schedule G4: Division of Xxxx & Arch Charleston IT Assets
Schedule G5: Division of Xxxx & Arch leases
Schedule G6: Xxxx & Arch Shared Contracts
Schedule X - Technical Reference Documents
Schedule X1: System Technology
Schedule X2: Technical Architecture Standards
ARTICLE 2 TERM
The Initial Term of this Agreement shall begin on the Distribution Date (as
defined in the Distribution Agreement) and continue for a two-year period
through January 31, 2001 (the "Initial Term"), except with respect to certain
Services related to Shared Contracts, for which the Initial Term will be as
stated in Section 16.2. Thereafter, this Agreement shall automatically renew for
successive one-year renewal terms until terminated as provided herein. In the
event that either XXXX or ARCH desires to terminate this Agreement effective as
of the expiration of the Initial Term, or at the end of any one year renewal
term thereafter, such party shall notify the other not less than twelve (12)
months prior to the expiration of the Initial Term or any renewal term
thereafter, as applicable.
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ARTICLE 3 SERVICES
SECTION 3.1 SERVICES TO BE PROVIDED
During the term of this Agreement, ARCH will perform, provide, manage and
administer the services and functions described in the Statements of Work,
Schedule A (as such may be modified hereunder, the "Services") in accordance
with the terms set forth in this Agreement.
SECTION 3.2 STANDARD OF SERVICE
ARCH will use all reasonable and customary measures to provide the Services at
all times in a cost-effective, high-quality fashion and on a basis consistent
with the basis on which it provides such Services internally. Initially, the
Services will be provided on substantially the same basis and manner as that on
which IT services were provided by XXXX internally prior to the Distribution.
Thereafter, ARCH and XXXX shall work together to develop agreed upon service
standards and implementation schedules.
SECTION 3.3 NON-MATERIAL CHANGES IN SERVICES
ARCH may make such non-material changes to the day-to-day delivery of Services
as it deems advisable in the ordinary course of business, to the extent such
changes do not require approval as set forth in Section 3.4 below or otherwise
adversely impact the Services, or reduce the level of Services delivered. Any
change in Services which (i) is described in the first paragraph of Section 3.4,
or (ii) represents a variance from or a change in the description of the Service
contained in the Statement of Work shall require approval as set forth in
Section 3.4 below.
SECTION 3.4 CHANGES TO SERVICES REQUIRING APPROVAL
All changes to computing systems, application software or application documents
that would materially alter the functionality of the affected systems or
increase the cost of Services to XXXX over the budgeted amounts shall be
controlled using a formal contract change control process to be developed
jointly by XXXX and ARCH within sixty (60) days after the Distribution Date. The
parties will establish a Contract Change Control Board to implement the change
control process within thirty (30) days after the Distribution Date, consisting
of three (3) representatives appointed by XXXX and three (3) representatives
appointed by ARCH.
The party proposing a change will document it in writing, provide technical and
cost-justification for the change, and specify a desired implementation date.
ARCH and XXXX will assess the impact of the proposed change, considering
resources required, interfaces to other systems and other planned and in process
changes. The completed analysis will be presented to the Contract Change Control
Board for approval. No changes will be implemented without the approval of the
Contract Change Control Board. The Contract Change Control Board may
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determine (or if so directed by the Management Committee or the Executive
Committee, shall determine) that significant changes require: 1) additional
approval by the Management Committee, 2) additional approval by the Executive
Committee and/or 3) a written agreement setting forth applicable specifications,
schedules, resources to be utilized, responsibility of both parties and
definition of successful completion.
SECTION 3.5 ADDITIONAL OR SUBSTITUTE SERVICES
In the event that XXXX desires that new Services be added to or substituted for
existing Services, XXXX shall make such proposed change request to ARCH,
including as much information and detail as reasonably available to XXXX. ARCH
will respond to such change request within thirty (30) days with a proposed
solution that identifies: 1) the proposed scope, 2) the expected delivery time
frame, 3) the implementation approach and logistics, and 4) pricing
implications, if any. If in the opinion of ARCH, the change request could be
implemented in a more cost-effective manner than that described in the proposed
solution or should, for any reason, be implemented in a different manner than
that described in the proposed solution, ARCH will advise XXXX in writing of its
recommendations and shall, if requested by XXXX, prepare a proposed solution
which reflects its recommendations.
ARTICLE 4 HUMAN RESOURCES
4.1 GENERAL
It is understood and agreed by ARCH and XXXX that all persons employed, directly
or indirectly, by ARCH to perform Services for XXXX shall be employees or agents
of ARCH exclusively, for all purposes and at no time shall be authorized to act
as agents, servants or employees of XXXX.
ARCH shall be solely responsible for the payment of compensation, including
provisions for employment taxes, workers' compensation and any similar taxes
associated with employment of ARCH's personnel.
ARCH shall take appropriate measures to ensure that its employees who perform
Services under this Agreement are reasonably competent to do so.
XXXX and ARCH agree that personnel allocations will be made as provided in
Schedule E.
SECTION 4.2 ACCOUNT TEAM
ARCH shall appoint an individual ARCH employee who from the Distribution Date
shall be in charge of implementing and managing delivery of the Services (the
"Account Manager"). The
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initial appointee shall be the person identified on Schedule E. ARCH's
subsequent appointment of any Account Manager shall be subject to OLIN's
consent, not to be unreasonably withheld.
In order to facilitate the orderly provision of Services hereunder, ARCH agrees
to discuss with XXXX any material change to be made by ARCH in staffing levels
or personnel assignments, which change will have a material impact on ARCH's
delivery of Services hereunder, prior to ARCH's instituting such change.
SECTION 4.3 NON-SOLICITATION OF PERSONNEL
During the term of this Agreement and for a period of twelve (12) months
following its termination, neither ARCH nor XXXX, except as provided in this
Section 4.3 below, on Schedule E or as otherwise agreed to by the parties in
writing, shall directly or indirectly solicit, recruit, employ, or contract for
the services of any employee of the other who was assigned at any time to
perform or receive Services pursuant to this Agreement, provided however, that
the foregoing non-solicitation provision shall not apply as of and after the
termination date of this Agreement to ARCH employees who are dedicated on a 85%
or more time basis to providing Services exclusively to XXXX pursuant to this
Agreement immediately prior to such termination date.
Notwithstanding the preceding paragraph, ARCH agrees that in the event that XXXX
serves notice under Article 2 hereof that it is terminating this Agreement, in
whole or in part as to specific Services as of January 31, 2001 (a "Year-Two
Termination Notice"), then XXXX shall be permitted hereunder to contact, solicit
and recruit Available ARCH Employees (as defined below), to become employees of
XXXX, for employment by XXXX commencing in February 2001. The parties shall
cooperate with each other regarding such solicitation, so as to permit ARCH to
continue to effectively render the Services hereunder through the termination
date, and to facilitate a smooth transition for XXXX.
"Available ARCH Employees" shall mean those ARCH employees who were directly
involved in providing the terminated Service(s) to XXXX under this Agreement,
but excluding any ARCH employee who may have been incidentally involved in
provision of such Service, but such involvement constituted less than fifteen
percent (15%) of such person's overall time. Within thirty (30) days after ARCH
receives a Year-Two Termination Notice from XXXX, ARCH shall provide XXXX with a
list of Available ARCH Employees. The Management Committee shall meet within
fifteen (15) days thereafter to resolve any disputes regarding whether such list
is compete and accurate. In the event that the Management Committee is unable to
reach agreement as to a final list of Available ARCH Employees, the dispute
shall be referred to the Executive Committee for resolution.
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ARTICLE 5 SYSTEM TECHNOLOGY
SECTION 5.1 SYSTEM TECHNOLOGY, TECHNICAL (INFRASTRUCTURE) ARCHITECTURE
ARCH shall be responsible for providing the system technology, as described on
Schedule X, necessary to support OLIN's requirements for the Services. ARCH
shall be responsible for ongoing development of technical architecture
standards, which will be reviewed and adopted by XXXX and ARCH from time to time
as appropriate and modified as mutually agreed. The technical architecture
standards last revised April 18, 1997 are as described on Schedule X. Within six
months after the Distribution Date, ARCH will complete a process with XXXX to
update these standards, which updated standards will then be submitted to the
Contract Change Control Board for approval.
SECTION 5.2 APPLICATION ARCHITECTURE
OLIN's application architecture shall at all times be developed and maintained
by XXXX and shall be OLIN's responsibility. OLIN's application architecture
shall govern the technological direction and specifications developed by XXXX in
consultation with ARCH.
SECTION 5.3 CURRENT CONFIGURATION
OLIN's system configuration as of the Distribution Date is detailed in Schedule
X.
SECTION 5.4 CHANGES IN TECHNOLOGY
ARCH may, at its discretion, and upon reasonable notice to XXXX, make changes to
the operating environment for the Services. No material change to the operating
environment shall be implemented by ARCH until XXXX has had a reasonable
opportunity to adapt its operations to accommodate such change. Any change
pursuant to this Section shall proceed through the Contract Change Control Board
approval process in Section 3.4.
XXXX may object to a proposed operating environment change if: 1) the proposed
change will have a material adverse effect on the operating environment or its
interfaces, 2) in the reasonable opinion of XXXX, the proposed change will
result in a net increase of OLIN's information technology costs related to the
Services or 3) the proposed change is not consistent with OLIN's applications
environment or system architecture.
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ARTICLE 6 SECURITY AND ACCESS
SECTION 6.1 SECURITY MEASURES AND PROCEDURES
ARCH shall provide physical and logical protection for XXXX hardware, software,
applications and data that meet or exceed physical and logical protection
practices observed by XXXX prior to the Distribution Date. This may include,
without limitation, the use of: 1) electronic or physical locks, 2) system
identifiers and passwords, 3) database locks and passwords, and 4) periodic
audit security checks.
SECTION 6.2 ACCESS BY XXXX
ARCH shall provide XXXX with access, subject to ARCH's reasonable access
security requirements, seven days a week, 24 hours a day to ARCH data centers
and other locations as appropriate for the purposes of inspection and monitoring
access and use of XXXX data and maintaining XXXX systems. ARCH shall provide
such assistance which may be reasonably required in connection with any such
inspection and monitoring.
ARTICLE 7 BACKUP AND DISASTER RECOVERY
SECTION 7.1 GENERAL
ARCH shall establish and maintain safeguards, including file backup, off-site
storage and contingency site protection, against the theft, destruction, loss or
alteration of OLIN's data, which safeguards are no less rigorous than those
maintained by XXXX prior to the Distribution Date.
SECTION 7.2 BACKUP AND RECOVERY PROCEDURES
XXXX shall, at OLIN's expense, establish such back-up security for data and keep
back-up data and data files as is reasonably required by ARCH to assist it in
safeguarding XXXX data. ARCH shall assist XXXX in establishing such other
back-up procedures as reasonably required from time to time by XXXX. As long as
ARCH follows the backup procedures reasonably established or agreed by XXXX,
XXXX (and not ARCH) shall be responsible for any loss or liability incurred by
it from failing to implement additional or different backup procedures. As
improvements in data security, transmission security, or other technology which
involve security evolve, ARCH and XXXX agree to work together to select and
implement appropriate additional or substitute security measures.
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SECTION 7.3 DISASTER RECOVERY PROCEDURES
Schedule D sets forth the procedures currently in place to be followed with
respect to the continued provision of the Services in the event that ARCH
facilities are unavailable for use to provide Services to XXXX because such
facilities have been destroyed, damaged or are otherwise not available for use
to such an extent that ARCH is unable to provide any or all of the Services. In
the event the Services are provided from a disaster recovery site for more than
sixty (60) days, XXXX may terminate this Agreement upon notice to ARCH without
regard to the provisions of Article 20.
ARCH shall (1) test the Disaster Recovery procedures within 120 days of the
Distribution Date and at least once every calendar year and certify to XXXX that
the Disaster Recovery procedures are operational, (2) consult with XXXX
regarding the priority to be given to the Services in the event of any such
disaster, and (3) not be excused from implementing the Disaster Recovery
procedures as a result of the events described in Section 18.4.
SECTION 7.4 CONTINGENCY SITE CHARGES
XXXX shall reimburse ARCH in the event of a disaster for OLIN's pro rata share
of actual costs and expenses incurred by ARCH in connection with providing
access to its disaster recovery facility, including, without limitation, fees
for actual usage incurred thereunder; provided, however, XXXX shall not be
responsible for the foregoing costs or expenses to the extent the unanticipated
interruption of ARCH data processing capability is caused by the gross
negligence or willful misconduct of ARCH.
SECTION 7.5 MODIFIED OR ADDITIONAL BACKUP AND DISASTER RECOVERY PROCEDURES
ARCH and XXXX contemplate that development of mutually agreed modifications to
the backup and recovery procedures and to the Disaster Recovery procedures will
be part of the Services, and as described in the Statement of Work. In addition,
ARCH may unilaterally modify the Disaster Recovery procedures at any time as it
deems necessary; provided, however, that such a modification shall not
materially adversely affect ARCH's ability to restore the Services, and further
provided that ARCH shall notify XXXX of any material such modification in the
Disaster Recovery procedures prior to implementation.
ARTICLE 8 PERFORMANCE STANDARDS
SECTION 8.1 ARCH COVENANTS
ARCH covenants that: 1) all Services rendered hereunder will be performed in a
professional manner, conforming in all material respects to the provisions
hereof, and at a minimum shall at
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all times be provided at or above the levels provided by XXXX internally prior
to the Distribution Date and 2) ARCH will reperform any Services at no
additional charge where it is clearly demonstrated that erroneous results were
created through some fault of ARCH during the performance of the Services.
SECTION 8.2 SERVICE LEVEL REQUIREMENTS
During 1999, ARCH and XXXX shall agree as to a set of Performance Standards,
according to the plan set forth in Schedule B. These Performance Standards will
be tested in calendar year 2000 (such 2000 tests to be informational only), and
measurement and monitoring tools and procedures to measure and report ARCH's
performance of the Services against such agreed Performance Standards. Such
measurements and monitoring shall permit reporting at a level of detail
sufficient to verify compliance with the Performance Standards, and shall be
subject to audit by XXXX. All such reporting shall be prepared and delivered to
XXXX at the monthly meetings described in Section 11.2 of this Agreement. ARCH
shall provide XXXX and XXXX'x auditors with information and access to all such
tools and procedures upon request for purposes of verification.
SECTION 8.3 REVISION OF STANDARDS
After development and implementation of the Performance Standards for calendar
year 2000, the XXXX Contract Manager and the ARCH Account Manager will meet
periodically, but no less frequently than annually, to review the then current
Performance Standards and make such adjustments thereto as may be reasonably
required to reflect applicable changes in the Services described in Section 8.2
above.
SECTION 8.4 XXXX SATISFACTION
ARCH shall develop, in cooperation with XXXX, a quality measurement of XXXX user
satisfaction. Within 360 days after the Distribution Date, ARCH shall conduct a
survey and provide a report to identify any part of the Services that needs to
be improved, and subsequently to follow up on any user concerns. The survey will
be repeated at intervals reasonably agreeable to both XXXX and ARCH but the
interval between surveys will not exceed fifteen (15) months.
SECTION 8.5 PERFORMANCE DOCUMENTATION
ARCH will provide XXXX with such performance documentation as currently exists
and other information as may be reasonably requested by the XXXX from time to
time in order to ensure the correct and efficient utilization of the Services
provided by ARCH.
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ARTICLE 9 XXXX RESPONSIBILITIES
SECTION 9.1 XXXX CONTRACT MANAGER
XXXX shall designate prior to commencement of the Services under this Agreement,
a qualified trained person as Contract Manager. Such designated person, and any
subsequent designee as Contract Manager, shall be subject to ARCH's consent, not
to be unreasonably withheld. The Contract Manager shall be responsible for
monitoring and managing this Agreement and shall have the authority to act for
XXXX hereunder, except with respect to matters within the scope of the
Management Committee or the Executive Committee (refer to Schedule A1 for more
details). The Xxxx Contract Manager will be responsible for providing
information, data decisions, and report approvals to ARCH personnel within
fifteen (15) days after receipt or notification thereof from ARCH, unless XXXX
and ARCH agree to an extended response date.
SECTION 9.2 PERSONNEL, FACILITIES, SERVICES AND ITEMS TO BE PROVIDED BY XXXX
XXXX shall provide, at no charge to ARCH, and in a timely manner, reasonable
cooperation and assistance during this Agreement, including: 1) providing work
space and physical facilities and support to ARCH personnel while working at
OLIN's sites, 2) providing the applicable hardware, operating system software,
development tools, local area networks and database software, and the like, 3)
providing physical site security, 4) providing project personnel who are
familiar with the Services to approve all submissions made by ARCH in a timely
manner or as specified herein, and participate in all other aspects of the
Services as necessary, 5) providing appropriate assigned space in the computer
rooms of the XXXX East Xxxxx Administration Building and the Charleston
facilities, 6) providing such other information and support relating to the
Services as are reasonably necessary, and 7) such other specific facilities,
personnel, services and other items to be provided by XXXX as are specified in
the Statement of Work, Schedule X. XXXX will be responsible for the availability
and performance of such facilities, personnel, services and other items.
XXXX shall provide ARCH at OLIN's East Xxxxx Brass/Winchester Administration
Building with dedicated space in which to store backup tapes from the ARCH
Bethalto Data Center, at no cost to ARCH. XXXX acknowledges and agrees that such
tapes shall contain both XXXX and ARCH data on a segregated basis. XXXX shall be
responsible for providing security and a proper environment for such tapes at
agreed levels.
XXXX shall be responsible for providing building services and facilities
services to the ARCH Bethalto Data Center (e.g. fire protection, security,
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shipping and receiving, mail), at no cost to ARCH. Such services shall be
provided by XXXX on a basis substantially consistent with the basis on which
they are provided to OLIN's East Xxxxx facilities.
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SECTION 9.3 ACCESS TO XXXX FACILITIES
XXXX shall provide ARCH with 7 day/24 hour access to all XXXX facilities at
which ARCH is providing Services, subject to OLIN's reasonable security
requirements.
SECTION 9.4 NON-PERFORMANCE BY XXXX
ARCH's obligations are conditional upon the fulfillment by XXXX of its
responsibilities set out in this Agreement. Delay or failure caused by the XXXX
to fulfill its responsibilities may result in an adjustment to the pricing and
performance of Services and shall release ARCH from its obligations hereunder to
the extent that ARCH is affected by such XXXX xxxxx or failure.
ARTICLE 10 PRICING AND PAYMENTS
SECTION 10.1 PRICING/FEES FOR SERVICES
XXXX will pay to ARCH the charges and fees for Services (the "Pricing/Fees") in
accordance with the provisions of Schedule C. The Pricing/Fees for 1999 is set
forth on Schedule C. In the event that XXXX and ARCH are unable to agree as to a
mutually acceptable pricing methodology for calendar year 2000, then the pricing
methodology and allocation formulas used in 1999 shall be used in 2000 as well.
Any modification to Pricing/Fees for years after 2000 shall be as mutually
agreed by the parties as a part of the budgeting process described below.
On or before August 1 of each year of this Agreement, ARCH will submit to XXXX a
proposed budget of Pricing/Fees for the following calendar year, together with
(unless a termination notice is then in effect) a budget forecast for the next
successive calendar year thereafter. XXXX and ARCH will meet and begin reviewing
the proposed budget for Pricing/Fees for the following calendar year no later
than by the end of August of each year, and shall work together on such budget
for Pricing/Fees so as to reach mutual agreement no later than November 30 for
the final budget for Pricing/Fees for the following calendar year.
The budgets proposed by ARCH for the following calendar year shall be generally
prepared on a basis consistent with the budget forecast for such year previously
submitted by ARCH to XXXX, subject to differences necessitated by changes in the
XXXX IT environment or XXXX business, changes made during the prior year to the
Services hereunder or changes in information technology services and/or
equipment, hardware or software generally.
All capital expenditures made by ARCH on behalf of XXXX as part of the Services
hereunder shall be subject to following the XXXX corporate-wide internal
approval process currently in effect, or as XXXX may modify it in the future
upon notice to ARCH.
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SECTION 10.2 EXPENSES
Travel expenses for ARCH or its designees for normal business and for attending
training courses and seminars will not be reimbursed to ARCH by XXXX. Normal
business includes, but is not limited to, attending committee meetings;
attending regularly scheduled XXXX service review meetings to review Services
level objectives and performance results; necessary travel for coordinating,
managing, planning, scheduling, and reviewing data center activities and problem
resolution; and employee travel related to discussions initiated by or at the
request of ARCH. In addition, ARCH will provide on-site support on a day-to-day
basis which will minimize travel requirements.
In the event that additional travel is requested by XXXX in conjunction with the
Services, all normal travel expenses incurred by ARCH to support these
activities will be reimbursed by XXXX. ARCH will notify XXXX in advance before
incurring travel expenses for which it expects reimbursement. Normal travel
expenses will include transportation expenses to and from the required
destination, necessary local transportation, hotels and standard per diem
allowances in accordance with the then current ARCH reimbursement policy. Unless
otherwise authorized by XXXX, reimbursed domestic travel will be only for
tourist or coach class, with such discounts as are available at booking.
SECTION 10.3 TAXES
ARCH is responsible for the payment of all federal taxes (except to the extent
XXXX is required to withhold federal taxes from ARCH), state and local taxes or
contributions imposed or required under unemployment insurance, social security
and income tax laws, with respect to Services performed by ARCH personnel in the
United States and all taxes associated with the performance of Services for XXXX
in any foreign country to the extent applicable.
To the extent not included in the price ARCH charges for Services, XXXX shall
pay to ARCH the amount of any taxes or charges set forth in (a) and (b) below
imposed now or in the future by any Governmental Authority including any
increase in any such tax or charge imposed on ARCH after the Distribution Date:
(a) Any applicable sales, use, gross receipts (other than gross receipt
taxes which are in lieu of income taxes), value added or similar tax that is
imposed as a result of, or measured by, any sale or Service rendered hereunder
unless covered by an exemption certificate; and
(b) Any other governmental taxes, duties, and/or charges of any kind,
excluding any income or franchise taxes imposed on ARCH, which ARCH is required
to pay with respect to any sale or Service rendered hereunder.
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SECTION 10.4 INVOICING AND PAYMENT
XXXX shall make monthly payments in advance to ARCH in an amount equal to
one-twelfth (1/12) of the annual agreed budgeted amount for Services (the
"Budget Amount") as set forth in Schedule C, on or before the last business day
of the preceding calendar month during this Agreement, except that the first
such monthly payment due hereunder shall be paid immediately following the
Distribution Date. Within thirty (30) days after the end of each calendar year,
ARCH will present XXXX with a final accounting of the actual costs for Services
for which XXXX previously has made such monthly payments for the Budget Amount,
and within fifteen (15) days thereafter, XXXX shall make a payment to ARCH (if
actual costs are in excess of the Budget Amount) or shall receive a payment from
ARCH (if actual costs are below the Budget Amount), in an amount equal to
one-half (1/2) of the net variance from the Budget Amount. Notwithstanding the
foregoing, to the extent that specific Services can be identified as being at
variance from the Budget Amount in a material amount based on actual usage
allocable to XXXX or to ARCH, then an adjustment shall be made quarterly in the
Budget Amount to reflect such variance.
ARCH shall render an invoice monthly for any expenses and additional Services
not included in the Budget Amount to XXXX at OLIN's principal place of business
or at such other address designated by XXXX. All charges will be invoiced at the
end of the calendar month in which the charges are incurred. Invoices are
payable by XXXX to ARCH at its principal place of business, within fifteen (15)
days of receipt of invoices. Each invoice will include sufficient information to
enable XXXX to reasonably ascertain and substantiate the appropriateness of the
charges.
All payments due hereunder shall be made by electronic funds transfer.
SECTION 10.5 LATE CHARGES
Any undisputed amount owed under this Agreement by XXXX , which is not paid on
or before the date such amount is due, and any disputed amount ultimately
determined under this Agreement to be owed to ARCH, shall bear interest
commencing upon the original due date and continuing until paid at two percent
(2%) above the "prime rate" as published in the Wall Street Journal under the
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title "Money Rates," and defined therein as being the base rate on corporate
loans at large money center commercial banks (or if no longer published, an
equivalent rate agreed by XXXX and ARCH). In no event shall the rate charged
exceed the maximum lawful rate of interest permitted by applicable federal or
state law.
SECTION 10.6 RECORDKEEPING
ARCH shall maintain complete and accurate accounting records to support and
document all charges and fees payable by XXXX. Such records shall be retained
for a period of at least four (4) years after the date of the last applicable
invoice. ARCH shall provide XXXX with such
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documentation about each invoice as may be reasonably requested by XXXX to
verify that ARCH's charges to XXXX are accurate, correct, and valid in
accordance with the provisions of this Agreement.
ARTICLE 11 MANAGEMENT AND CONTROLS
SECTION 11.1 REPORTING
ARCH will provide XXXX with monthly status reports on projects and system
operations in accordance with current practices. The content and format of these
reports will be recommended by the Management Committee and approved by the
Executive Committee.
In addition, ARCH will provide XXXX with such other documentation and
information as may be reasonably requested by XXXX from time to time in order to
verify that ARCH's performance of Services is in compliance with the terms and
conditions of this Agreement.
SECTION 11.2 MEETINGS OF CONTRACT MANAGER AND ACCOUNT MANAGER
The XXXX Contract Manager and ARCH Account Manager will meet on a monthly basis,
or more frequently as required, to review ARCH's performance in the prior month
regarding, but not limited to, service level goals and attainment, XXXX
satisfaction, workload and work effort, and billing. These meetings shall be
conducted within ten (10) business days following the close of the prior month,
unless both XXXX and ARCH agree to a different schedule.
SECTION 11.3 MANAGEMENT AND EXECUTIVE COMMITTEES
XXXX and ARCH shall establish and maintain a Management Committee and Executive
Committee throughout the term of this Agreement.
The Management Committee shall consist of the Contract Manager from XXXX and the
Account Manager from ARCH, with advisory members from each company as deemed
appropriate. The responsibilities of the Management Committee include the
following: 1) ensure sufficient and continued communications between XXXX and
ARCH, 2) review planned system changes, 3) provide advice on the use of existing
and new technology, 4) attempt to resolve disputes by mutual agreement, with
escalation to the Executive Committee as necessary, 5) review price changes and
modifications to Services to this Agreement, 6) review and revise XXXX and ARCH
responsibilities, 7) review and act upon performance reports, including service
level reports, 8) review and analyze workload trends and variances from plan,
and 9) undertake such other responsibilities as XXXX and ARCH agree upon from
time to time.
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The Executive Committee shall consist of the XXXX Information Technology
Executive Advisory Committee and the Vice President - Information Technology of
ARCH, with advisory members from each company as deemed appropriate. The
responsibilities of the Executive Committee include the following: 1) perform an
annual review of XXXX business planning initiatives and expected changes as they
relate to the Services provided by ARCH, 2) perform an annual review of ARCH
plans to support OLIN's needs for Services, 3) review quarterly the results of
the Management Committee meetings and review annually performance evaluation
reports, 4) attempt to resolve by mutual agreement any disputes escalated by the
Management Committee, and 5) undertake such other responsibilities as XXXX and
ARCH agree upon from time to time.
SECTION 11.4 MANAGEMENT COMMITTEE AND EXECUTIVE COMMITTEE MEETINGS
The Management Committee will meet on a quarterly basis, or as otherwise may be
agreed by XXXX and ARCH, to review ARCH's performance in the prior quarter
regarding, but not limited to, service level goals and attainment, XXXX
satisfaction, workload and work effort, and billing. These meetings shall be
conducted within fifteen (15) business days following the close of the prior
quarter, unless both XXXX and ARCH agree to a different schedule.
The Executive Committee will meet on a quarterly basis, or otherwise as may be
agreed by XXXX and ARCH, to review the results of the Management Committee
meeting and consider such other matters as the Executive Committee deems
appropriate. These meetings shall be conducted within thirty (30) business days
following the close of the prior quarter, unless both XXXX and ARCH agree to a
different schedule.
ARTICLE 12 DISPUTE RESOLUTION
SECTION 12.1 GUIDING PRINCIPLES
ARCH and XXXX agree to utilize all reasonable efforts to resolve any dispute,
whether arising during the term of this Agreement or at any time after the
expiration or termination of this Agreement, which touches upon the validity,
construction, meaning, performance or effect of this Agreement or the rights and
liabilities of the parties, promptly and in an amiable manner by negotiations
between the parties.
SECTION 12.2 PROBLEM ESCALATION PROCEDURES
Either party may refer any dispute to the Management Committee. The Management
Committee shall meet as soon as is reasonably possible after a dispute is
referred to it, giving due regard to the nature and impact of the issue under
consideration.
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If a dispute cannot be resolved by the Management Committee within a time period
that is reasonably satisfactory to the party raising the issue under
consideration, the Management Committee, at the request of either party, shall
promptly refer the dispute to the Executive Committee. The Executive Committee
shall meet as soon as is reasonably possible after a dispute is referred to it,
giving due regard to the nature and impact of the issue under consideration.
If a dispute cannot be resolved by the Executive Committee within a time period
that is reasonably satisfactory to the party raising the issue under
consideration, the Executive Committee, at the request of either party, shall
promptly submit the dispute for arbitration as provided in Section 12.3.
SECTION 12.3 ARBITRATION
The parties stipulate and agree that if they are unable to resolve any
controversy arising under this Agreement then such controversy shall be
submitted at the election of either party to mandatory and binding arbitration
in lieu of litigation and judgment upon the award rendered by the arbitrator may
be entered in any court of competent jurisdiction in State of Connecticut. Such
arbitration shall be held in Fairfield County, Connecticut and shall be
conducted in accordance with the Rules of the American Arbitration Association
then in effect. Every matter in the controversy shall be settled by a panel of
three arbitrators, none of whom may be a director, officer, employee,
representative or agent of either of the parties. Each party shall select one
arbitrator and the two arbitrators so selected shall select a neutral arbitrator
to serve as the third arbitrator. In the event court action is required to
enforce this Agreement to arbitrate, the parties hereby consent to the exclusive
jurisdiction of the courts of the State of Connecticut. This section shall be
interpreted, construed and governed by and in accordance with the Rules of the
American Arbitration Association.
ARTICLE 13 AUDIT RIGHTS
SECTION 13.1 AUDIT AREAS
During the term of this Agreement, XXXX and its authorized agents and
representatives shall have the right to conduct inspection and/or audits of the
Services provided by ARCH, including observing work performance and reviewing
ARCH's records, during normal business hours upon reasonable notice to ARCH, at
OLIN's expense, to verify that ARCH is exercising reasonable procedures in
compliance with the requirements of this Agreement, to verify the integrity of
the XXXX data, to examine the systems that support and transmit XXXX data, and
to examine ARCH's conformance with this Agreement and performance of the
Services hereunder, including, to the extent applicable to the Services and to
the pricing for such
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Services, 1) the practices and procedures, 2) the systems, 3) the general
controls and security practices and procedures, and 4) the disaster recovery and
back-up procedures.
SECTION 13.2 ACCESS
For the purposes of such audits, ARCH will provide to XXXX (and its designees)
access to the part of any facility at which ARCH is providing the Services, to
ARCH personnel and to data and records relating to the Services. ARCH will
provide reasonable assistance and will cooperate reasonably with XXXX in
connection with audit functions and with regard to examinations by regulatory
authorities. XXXX auditors shall comply with ARCH's reasonable security
measures.
In the conduct of such inspections or audits, XXXX and its authorized agents and
representatives will not be entitled to review any confidential or proprietary
information of ARCH or any third party and may not interfere with the ability of
ARCH to perform the Services hereunder.
SECTION 13.3 INSPECTIONS OR AUDIT NOT A WAIVER
No failure of XXXX during the progress of the Services to discover Services not
in accordance with this Agreement shall be deemed an acceptance thereof, nor a
waiver of defects therein; and no payment shall be construed to be an acceptance
of Services which are not in accordance with this Agreement.
ARTICLE 14 CONFIDENTIALITY
SECTION 14.1 CONFIDENTIAL INFORMATION
"Confidential Information" shall mean: 1) all information marked confidential,
restricted or proprietary by either party; 2) OLIN's client lists, XXXX
information, account information, and information regarding business planning
and operations of XXXX and OLIN's administrative, financial or marketing
activities; or 3) a party's proprietary intellectual property, such as
proprietary software, methodologies, tools, specifications, drawings, sketches,
models, samples, records, documentation, works of authorship or creative works,
or data which has been originated or developed by such party's personnel or by
third parties under contract to develop same, or which has been purchased by
such party.
SECTION 14.2 OBLIGATIONS AS TO CONFIDENTIAL INFORMATION
Without the prior written consent of the other party, no Confidential
Information shall be used by the receiving party for any purpose other than
performance of this Agreement, or disclosed by the receiving party to any third
party, other than its agents or employees who are subject to
17
non-use and confidentiality obligations consistent with those contained herein,
except: 1) that in the event that either party receives a subpoena, request for
documents, or other validly issued judicial or administrative process requiring
the disclosure of Confidential Information of the other party, then such party
may disclose such information to the extent required by such demand, provided
that such party promptly notifies such other party of the receipt of process,
and permits the other party a reasonable opportunity to respond to such process,
2) to the extent such Confidential Information is or becomes generally available
to the public other than as a result of disclosure by the receiving party, 3) to
the extent such Confidential Information becomes available to XXXX or ARCH from
a third party who, to the best of OLIN's or ARCH's knowledge, received such
information on a non-confidential basis, or 4) to the extent such Confidential
Information had been independently developed by XXXX or ARCH at the time of
receipt thereof from the other party.
SECTION 14.3 STANDARD OF CARE
The party receiving Confidential Information will maintain confidentiality by
using the same degree of care that the receiving party takes to hold in
confidence its own proprietary information of a similar nature, but in any event
with no less of a degree of care than is reasonable for such information.
Without limiting the general provisions of this Article, ARCH warrants that its
employees involved in performing the Services shall be obligated in writing to
ARCH to protect XXXX Confidential Information in a manner, at a minimum,
consistent with the terms of this Agreement, and that to the extent that ARCH
retains any third parties to provide Services under this Agreement, ARCH shall
require such third parties to sign confidentiality agreements consistent with
this Article 14.
ARTICLE 15 OWNERSHIP AND LICENSES OF SOFTWARE AND INTANGIBLE ASSETS
SECTION 15.1 DATA
All XXXX data shall be and remain the property of XXXX or its suppliers or
licensers.
SECTION 15.2 APPLICATION SOFTWARE
XXXX shall be and remain at all times the owner of all software to be owned by
it exclusively after the Distribution, as set forth in Schedule G, or purchased
by XXXX after the Distribution Date, that is being used to provide Services to
it under this Agreement and of all software developed by ARCH as part of the
Services for OLIN's exclusive use under or pursuant to this Agreement. XXXX
grants to ARCH a worldwide, fully paid-up, non-exclusive right and license
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to use, copy, maintain, modify, enhance, and create derivative works of, such
software for the sole purpose of providing the Services pursuant to this
Agreement. Such authorization includes without limitation, operation of the
software for XXXX, maintenance, development, and modification as authorized by
this Agreement (or otherwise in writing); and the duplication for operational,
developmental, and archival purposes. This license does not give ARCH the right,
and ARCH is not authorized, to sublicense such software, except if applicable,
to ARCH subsidiaries for the sole purpose of their providing Services pursuant
to this Agreement. Except as otherwise requested or approved by XXXX, ARCH shall
cease all use of such XXXX owned software upon expiration or termination of this
Agreement.
ARCH shall be and remain at all times the owner of all software to be owned by
it exclusively after the Distribution, as set forth in Schedule G, or purchased
by it on its own behalf after the Distribution Date, provided however, that
certain of such ARCH owned software (as specifically designated on Schedule G,
and only to the extent permitted under the applicable software license), shall
be used by both ARCH and XXXX during the term of this Agreement as part of the
Services. OLIN's right to use of such software is restricted solely to usage as
part of the Services being provided by ARCH to XXXX hereunder, and upon
termination of this Agreement, XXXX shall have no further right to use such
software.
SECTION 15.3 NEW WORK
Except as otherwise specified, new work will be owned as follows: 1) new work
created by XXXX shall be the property of XXXX, 2) new work created by ARCH as
"work for hire" for XXXX shall be the property of XXXX, and 3) ownership of new
work owned jointly, created jointly or created for joint use by XXXX and ARCH
and the rights and obligations related to the use thereof, shall be negotiated
between the parties on a case-by-case basis. In the event that the parties
cannot reach agreement, the matter will be submitted for dispute resolution in
accordance with Article 12.
ARTICLE 16 SHARED ASSETS AND CONTRACTS
SECTION 16.1 FIXED ASSETS
The parties agree that a fixed asset allocation as of the Distribution Date for
XXXX owned IT assets, ARCH owned IT assets and shared IT assets shall be
determined and agreed between ARCH and XXXX within ninety (90) days after the
Distribution Date, on a basis consistent with the preliminary fixed asset
allocation set forth on Schedule G, and that such assets shall be allocated in
accordance with such agreed fixed asset allocation. Upon termination of this
Agreement, ARCH will have a right of first refusal to purchase OLIN's portion of
any shared IT assets at the book value of such XXXX portion. If ARCH does not
elect to exercise such right of first refusal on or before termination of this
Agreement, then XXXX may within sixty (60) days
19
thereafter, elect to purchase ARCH's portion of any shared IT assets at the book
value of such ARCH portion. If XXXX does not so elect, then the shared IT asset
shall be sold and the proceeds distributed to ARCH and XXXX in accordance with
their share of the sold asset.
SECTION 16.2 SHARED CONTRACTS
As part of the Services, XXXX shall participate in the contracts listed on
Schedule G6 (the "Shared Contracts") which were distributed to ARCH as part of
the Distribution, and all associated costs will be allocated to XXXX in
accordance with Schedule C. As to the Services identified on Schedule G6 as
relating to a Shared Contract, ARCH and XXXX agree that the Initial Term for
those Services shall be through the expiration date for the related Shared
Contract, and that unless otherwise agreed by the parties, the Pricing/Fees for
such Services during the Initial Term shall use the pricing methodology and
allocation formulas used in 1999.
Notwithstanding the foregoing, either XXXX or ARCH may elect to terminate the
Services related to any such Shared Contract prior to the expiration date of
such Shared Contract set forth on Schedule G6; provided, however, such party
shall be responsible for all termination or cancellation charges imposed by the
third party contractor and allocable to early termination or modification of
such Shared Contract resulting from the party's election to terminate the
related Services, prior to the Shared Contract's expiration date set forth on
Schedule G6, and shall otherwise make the non-terminating party whole for any
increased costs associated with such Shared Contract actually incurred by the
non-terminating party as a result of the termination of the related Services.
16.3 NEW SHARED ASSETS OR CONTRACTS
No new shared (i.e., intended for joint usage and shared cost allocations during
the term of this Agreement) systems, assets or contractual obligations (or
extensions to existing shared systems, assets or contracts), will be committed
to or acquired by either party, except as mutually agreed between XXXX and ARCH
in advance as to ownership, usage, Services to be provided and applicable
Pricing/Fees.
ARTICLE 17 INDEMNITIES
SECTION 17.1 INDEMNIFICATION
(a) ARCH shall indemnify, defend and hold harmless XXXX, including its
affiliates, employees, representatives and agents (the "XXXX Indemnitees") from
and against all claims, losses, damages, expenses, including attorney's fees and
expenses ("Claims"), asserted by any ARCH subcontractor or by ARCH's or such
subcontractor's employees (including their families
20
and estates) against the XXXX Indemnitees in connection with, or as a result of,
ARCH's provision of Services under this Agreement except to the extent such
Claims and Damages are caused by the gross negligence or willful misconduct of
any of the XXXX Indemnitees.
(b) XXXX shall indemnify, defend and hold harmless ARCH, including its
affiliates, employees, representatives and agents (the "ARCH Indemnitees") from
and against all Claims asserted by any third party (other than ARCH
Subcontractors or ARCH's or such ARCH subcontractor's employees (including their
families and estates) for which ARCH has indemnification obligations under
Section 17.1(a) above), or by XXXX employees (including their families and
estates), against the ARCH Indemnitees in connection with, or as a result of,
ARCH's provision of Services under this Agreement unless such Claims and/or
Damages are caused by the gross negligence or willful misconduct of any of the
ARCH Indemnitees.
(c) Each party shall indemnify, defend and hold harmless the other
indemnitee group from and against all monetary fines, penalties or the like,
imposed by a Governmental Authority against the party entitled to
indemnification arising from a violation by the indemnifying party of applicable
laws, rules, regulations, orders, or the like of any governmental authority.
(d) In no event will an indemnitor be liable hereunder for punitive,
special, indirect, consequential damages or lost profits or business
interruption claimed by a third party.
SECTION 17.2 INDEMNIFICATION PROCEDURES
(a) In the event of any Claim for which a party is entitled to
indemnification, the party seeking indemnification shall immediately notify in
writing the indemnifying party of such Claim and shall fully cooperate with the
indemnifying party in the defense of the Claim and, at the indemnifying party's
cost, permit the indemnifying party's attorney(s), reasonable acceptable to the
indemnified party, to handle and control the conduct and/or settlement of such
Claim, including making personnel and records available for the defense of the
Claim.
(b) The indemnifying party shall keep the indemnified party reasonably
informed regarding any claim, action or proceeding in which the indemnifying
party is defending the indemnified party, and shall not enter into any
settlement or compromise of such claim, action or proceeding affecting the
indemnified party without the indemnified party's consent, unless such
settlement or compromise contains a complete and unconditional release of the
indemnified party. In no event shall the indemnifying party agree to a
settlement which contains a non-monetary component without the consent of the
indemnified party, which consent not to be unreasonably withheld.
(c) The indemnification provisions of Section 17.1 are contingent upon
the indemnified party promptly turning over the complete control of the claim
and/or suit to the indemnifying party.
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SECTION 17.3 SCOPE OF INDEMNIFICATION AS PERMITTED BY APPLICABLE LAW
Nothing in this Article 17 shall be construed to violate directly or indirectly
any applicable law prohibiting indemnification for the sole or partial
negligence of the indemnitee. In the event any provision of this indemnity is
contrary to applicable law, this indemnity shall not be void or unenforceable,
but shall be enforced to, and only to, the fullest extent permitted by the
applicable law.
ARTICLE 18 LIABILITIES
SECTION 18.1 LIMITATION OF LIABILITY
ARCH's sole liability hereunder with respect to performance of Services shall be
for a breach of its covenants in Section 8.1 above. In no event will either
party's liability hereunder exceed the amounts payable hereunder as described in
Pricing/Fees and Section 16.2 with respect to Shared Contracts.
SECTION 18.2 CONSEQUENTIAL DAMAGES
Notwithstanding anything to the contrary contained herein or at law and in
equity, in no event shall a party be liable to the other party for punitive,
special, indirect or consequential damages (including, without limitation,
damages for loss of business profits, business interruption or any other loss)
arising from or relating to any claim made under this Agreement or regarding the
provision of or the failure to provide Service(s) hereunder, even if a party had
been advised or was aware of the possibility of such damages.
SECTION 18.3 MITIGATION
XXXX and ARCH (as the case may be) shall use all reasonable efforts to mitigate
the loss and damage (if any) incurred by it as a result any breach by the other
party of that other party's obligations under this Agreement.
SECTION 18.4 FORCE MAJEURE
Both parties will be released from their obligations under this Agreement to the
extent that circumstances beyond the control of either party prevent it from
performing its obligations: 1) if and to the extent such default or delay is
caused by fire, flood, earthquake, elements of nature or acts of God, riots,
civil disorders, wars, rebellions or revolutions, governmental action,
third-party strikes, lockouts, or labor difficulties, or any other similar cause
beyond the reasonable control of such party and 2) provided such default or
delay could not have been prevented by
22
reasonable precautions and cannot reasonably be circumvented by the non-
performing party through the use of alternate sources, work around plans or
other means.
In such event, the non-performing party will be excused from any further
performance or observance of the obligations so affected for as long as such
circumstances prevail and such party continues to use commercially reasonable
efforts to recommence performance or observance whenever and to whatever extent
possible without delay. Any party so delayed in its performance will immediately
notify the other by telephone (to be confirmed in writing within two (2)
business days of the inception of such delay) and describe at a reasonable level
of detail the circumstances causing such delay. If any of the above enumerated
circumstances continues for more than thirty (30) days, the party affected by
the other party's delay or inability to perform may elect to suspend performance
under the Statement of Work, obtain the affected Services elsewhere and resume
performance of the Statement of Work once the force majeure event ceases to
exist, provided that ARCH may request an appropriate adjustment to the charges
for any applicable Services to reflect any additional costs incurred as a result
of the force majeure event.
The schedule for any affected Statements of Work will be extended to reflect the
delay caused by a force majeure event and an appropriate adjustment will be made
to the charges thereunder.
ARTICLE 19 INSURANCE
Each party shall be responsible for maintaining insurance (which may include
self insurance) in coverages and amounts sufficient to replace its own
equipment, property and systems, together with its portion of any shared assets,
to cover potential liabilities hereunder, and otherwise to comply with all
applicable requirements of law. Upon request, each party shall deliver
certificates evidencing such insurance to the other party, and otherwise comply
with such requirements regarding such insurance as the other party may
reasonably require and as are consistent with the provisions of this Article.
Each party shall look to its own insurance (including self insurance and any
deductible amount) as its exclusive remedy to recover damages for property
damage, business interruption or extra expenses relating to an insurable event.
Each party hereby waives its rights of recovery against the other for any loss
insured by fire, extended coverage and other property insurance policies
(including self insurance and any deductible amount) existing for the benefit of
such party. Each party shall obtain from its insurer a waiver of subrogation
against the other party.
ARTICLE 20 TERMINATION
SECTION 20.1 TERMINATION FOR CAUSE
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In the event that either party is at any time in material breach of its
obligations under this Agreement, the non-breaching party may elect to terminate
this Agreement or the portion of this Agreement relating to such breach. The
party seeking termination will provide the other party with sufficient
reasonable prior written notice in reasonable detail of such material breach and
the opportunity to cure the breach. If such breach is not cured within ten (10)
days of notice of a monetary breach, or within thirty (30) days of notice of all
other breaches, then the party not in default may terminate this Agreement (or
such portion thereof) as of the date specified in such notice of termination.
XXXX shall pay ARCH for Services performed through the date of termination or
expiration of the term of this Agreement.
The terminating party shall have all rights and remedies generally afforded by
law or equity, subject to the limitations expressed in this Agreement. Such
termination will proceed in an orderly manner, as soon as practical or in
accordance with the schedule agreed to by XXXX and ARCH.
SECTION 20.2 TERMINATION ASSISTANCE
It is the intent of the parties that at the termination of this Agreement, ARCH
will cooperate with XXXX to assist with the orderly transfer of the services,
functions and operations provided by ARCH hereunder to XXXX itself or another
services provider. Prior to termination of this Agreement, XXXX may request ARCH
to perform and, if so requested, ARCH shall perform (except in the event of a
termination due to a failure by XXXX to pay any amounts due and payable under
this Agreement when due) Services in connection with migrating the work of XXXX
to XXXX itself or another services provider. Services transfer assistance shall
be provided until the date of termination with respect to the Services, and for
expiration or termination related services other than those relating to the
Services for up to three (3) additional months after the date of expiration or
termination.
If the Services transfer assistance requires ARCH to incur expenses in addition
to the expenses that ARCH would otherwise incur in the performance of this
Agreement then: 1) ARCH shall notify XXXX of any additional expenses associated
with the performance of any additional services pursuant to this section prior
to performing such services 2) upon OLIN's authorization, ARCH shall perform the
additional services and invoice ARCH for such services, and 3) XXXX shall pay
ARCH for such additional expenses incurred to provide the additional services in
accordance with the provisions of Article 10 above.
If prior to termination, ARCH has prepaid charges for a license to use any
licensed program included in the Services, to the extent that the XXXX has the
benefit of such license and
24
prepayment following termination, the XXXX agrees to reimburse ARCH an
appropriate portion of the prepaid charges
ARCH will transfer or assign to XXXX or its designee, upon OLIN's request, on
mutually acceptable terms and conditions, any contracts applicable solely to
Services being provided to XXXX for maintenance, disaster recovery services and
other necessary third-party services (other than subcontractor services) then
being used by ARCH to perform the Services, subject to the payment by XXXX of
any transfer fee or charge imposed by the third party contractor.
ARCH shall have no obligation to transfer or assign to XXXX any contracts for
services, facilities or equipment for which usage is shared. Such contracts
shall be governed by Section 16.2 and 16.3, as applicable.
Termination activity shall begin upon ARCH's receipt of 1) notice of the
termination for convenience, 2) notice of the termination for default, or 3)
notice by XXXX of its intention not to renew. There is no additional charge for
termination activities except in the case of when termination if for default
caused by a breach by XXXX.
Pre-migration Services
. Freeze all non-critical software changes
. Notify all outside ARCH of necessary ARCH-related procedures to be
followed during the turnover phase
. Review all software libraries (tests and production) with the new
service provider and XXXX
. Assist in establishing naming conventions for the new production site
. Analyze space required for the databases and software libraries
. Generate a tape and computer listing of the source code for the
software to be provided to OLIN in a form reasonably requested by OLIN
. Deliver all source code, technical specifications and materials, and
user documentation for the software to OLIN and/or OLIN's designee
. Provide listings of equipment and software leases and contracts used to
support OLIN
. Provide a transition plan for personnel who support OLIN
. Explain the operations manual to new operations staff
. Provide training to new operations staff if OLIN is assuming
responsibility for the services, and assist with training if a third
party is assuming responsibility
. Provide system "walk throughs"
. Provide a security transition plan
. Submit a schedule for termination activities
25
Migration Services
. Unload the production databases
. Deliver tapes of production databases (with content listings) to the
new operations staff, data files and tape libraries
. Assist with the loading of databases
. Assist with the communications network turnover
. Assist in the execution of a parallel operation, until the Distribution
Date of expiration or termination of this Agreement, including delivery
to OLIN of the then current procedures manual
Post-migration Services
. Answer questions regarding the services on an "as needed" basis
. Turnover any remaining OLIN-owned reports and documentation still in
ARCH's possession
SECTION 20.3 RETURN OF MATERIALS UPON TERMINATION
Upon termination of this Agreement, each party will promptly deliver to the
other party, or certify destruction of, all data, programs and similar materials
of the other held in connection with the performance of the Agreement.
ARTICLE 21 GENERAL TERMS
SECTION 21.1 ENTIRE AGREEMENT
The parties agree that this Agreement is the complete and exclusive statement of
the agreement between the parties relating to the subject matter of this
Agreement, which supersedes all proposals or prior agreements or representations
whether oral or written and all other communications between the parties.
SECTION 21.2 GOVERNING LAW
This Agreement and its application and interpretation will be governed
exclusively by the laws prevailing in the State of Connecticut. The courts of
the State of Connecticut shall have exclusive jurisdiction over all matters
arising in relation to this Agreement that are not subject to dispute resolution
hereunder and each party hereby submits to the jurisdiction of the courts of the
State of Connecticut.
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SECTION 21.3 HEADINGS
The article and section headings are for reference and convenience only and
shall not be considered in the interpretation of this Agreement.
SECTION 21.4 SEVERABILITY
If any provision of this Agreement shall be prohibited by or be invalid under
applicable law, it shall be deemed modified to reflect the original intentions
of the parties as nearly as possible in accordance with applicable laws. If for
any reason it is not deemed so modified, it shall be prohibited or invalid only
to the extent of such prohibition or invalidity without the remainder thereof of
any, such other provision being prohibited or invalid. If the remainder of this
Agreement shall not be affected by such declaration or finding and is capable of
substantial performance, then each provision not so affected shall be enforced
to the extent permitted by law.
SECTION 21.5 SURVIVAL
ARCH and OLIN agree that the following Articles shall survive termination to the
extent necessary to give effect to the intent and understanding of the parties:
Article 10-Pricing and Payment, Article 14-Confidentiality, Article
17-Indemnification, Article 18-Limitation of Liability, and Article
20-Termination.
SECTION 21.6 CONSENTS AND APPROVALS; COMPLIANCE WITH LAWS
Each party agrees to obtain all necessary regulatory approvals applicable to its
business, obtain and maintain in effect any necessary permits, and comply with
all laws, rules and regulations applicable to the performance of the Services.
SECTION 21.7 WAIVER
No term or provision hereof shall be deemed waived and no breach excused, unless
such waiver or consent shall be in writing and signed by the party claimed to
have waived or consented. Any consent by any party to, or waiver of, a breach by
the other, whether expressed or implied, shall not constitute a consent to,
waiver of, or excuse for any other different or subsequent breach.
SECTION 21.8 NOTICES
Whenever one party is required or permitted to give notice to the other under
this Agreement, such notice shall be made in writing (unless otherwise expressly
provided elsewhere in this Agreement) and will be deemed given when received 1)
by personal delivery, overnight
27
delivery courier or U.S. registered or certified mail, return receipt requested,
postage prepaid or 2) by facsimile (provided that a copy thereof is also
delivered promptly by one of the foregoing methods of delivery). Notices will be
sent to the designated addresses. Either party may hereto from time to time
change its address or person for notification purposes by giving the other prior
written notice of the new address or person(s) and the date upon which it will
become effective.
Until notice of change of address has been given in the manner provided in this
Section 21.8, notices shall be addressed as follows:
If to ARCH:
000 Xxxxxxx 0
Xxxxxxx, Xxxxxxxxxxx 00000
Attention: Vice President - Information Technology
[INSERT TELEPHONE NUMBER]
[INSERT FACSIMILE NUMBER]
If to OLIN:
000 Xxxxxxx 0
Xxxxxxx, Xxxxxxxxxxx 00000
Attention: Vice President and Comptroller
[INSERT TELEPHONE NUMBER]
[INSERT FACSIMILE NUMBER]
SECTION 21.9 ASSIGNMENT
Except for assignment by OLIN or ARCH to a parent, subsidiary or affiliate,
neither party may assign its rights or obligations under this Agreement in whole
or in part without the prior written consent of the other party, which consent
shall not be unreasonably withheld.
SECTION 21.10 SUBCONTRACTORS
ARCH shall not subcontract the delivery of all or any substantial part of the
Services provided to OLIN without the express prior written consent of OLIN,
which consent shall not be unreasonably withheld. OLIN's approval of a
subcontractor shall not relieve ARCH of its obligations under this Agreement.
Nothing contained in this Agreement shall create any contractual relationship
between a subcontractor and OLIN. ARCH agrees to bind every subcontractor by the
terms and conditions of this Agreement, as far as appropriate and applicable, to
the Services to be performed by the subcontractor. ARCH shall be fully
28
responsible to OLIN for the acts and omissions of all subcontractors and of
persons directly or indirectly employed or contracted by any of them.
SECTION 21.11 MERGERS AND ACQUISITIONS
If OLIN acquires control of another entity or merges with another business
organization during the Term of this Agreement, ARCH will to the extent
reasonably possible at the time, if requested by OLIN, provide the Services to
such entity, subject to agreement between ARCH and OLIN as to pricing for such
Services, and mutually agreed upon reimbursement for any conversion expenses.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
XXXX CORPORATION
By:
______________________________________________________________________
(signature)
______________________________________________________________________
(typed or printed)
Title: ______________________________________________________________________
Date:
______________________________________________________________________
ARCH CHEMICALS, INC.
By:
______________________________________________________________________
(signature)
______________________________________________________________________
(typed or printed)
Title:
______________________________________________________________________
Date:
______________________________________________________________________
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