Exhibit 10.1
between each of
XXXXXXXX XXXXX CO.,
ELECTRONIC DATA SYSTEMS CORPORATION
and
EDS INFORMATION SERVICES L.L.C.
April 1, 2001
Table of Contents
-----------------
Article I. Relationship Management
1.1 EDS Account Executive.................................................1
1.2 Xxxxxxxx Xxxxx Representative.........................................1
1.3 Committees............................................................1
1.4 Meetings; Reports.....................................................2
1.5 Procedures Manual; Migration Plan ....................................2
(a) Procedures Manual.................................................2
(i) Periodic Reports ......................................2
(ii) Goals .................................................2
(iii) Program Management.....................................2
(iv) Disaster Recovery Procedures...........................2
(v) Change Control Procedures..............................2
(vi) Executive Summary .....................................2
(b) Migration Plan...............................................2
(c) Updates .....................................................3
(d) Services ....................................................3
Article II. Personnel
2.1 Transition of Employees...............................................3
(a) Past Service Credits.........................................3
(b) Waiver of Certain Conditions.................................3
(c) Xxxxxxxx Xxxxx Cooperation...................................3
(d) Payroll Accommodation........................................4
(e) Transfer of Benefits.........................................4
(f) Liabilities for Benefit Claims...............................4
2.2 Use and Replacement of Personnel......................................4
(a) Account Team.................................................4
(b) Key Personnel................................................5
2.3 Qualifications and Retention of EDS Personnel.........................5
(a) Qualifications...............................................5
(b) Turnover Rate................................................5
(c) Training ....................................................5
2.4 Use of Subsidiaries and Subcontractors................................5
2.5 Hiring of Employees...................................................6
2.6 Additional Benefits...................................................6
2.7 No Re-Assignment to Competitor........................................6
Article III. EDS Services
3.1 Term; Renewal.........................................................6
3.2 EDS Services..........................................................6
3.3 Services Generally; Performance Criteria..............................7
3.4 Service Levels........................................................7
(a) Procedures...................................................7
(b) Reports and Remediation......................................7
(i) Investigation .......................................7
(ii) Describe .............................................7
(iii) Correct the Error ....................................7
(iv) Report ...............................................8
(c) Meeting ....................................................8
(d) Service Credits; Other Remedies..............................8
(e) Technological Advancements...................................8
(f) Efficient Use of Resources...................................8
(g) Customer Surveys ...........................................8
3.5 Additional Services...................................................8
(a) From EDS.....................................................8
(b) From Third Parties...........................................9
(c) EDS Responsibilities to Other Service Providers..............9
(d) Xxxxxxxx Xxxxx Conditions to Using Third Party Services......9
3.6 Reliance on Instructions..............................................9
Article IV. Xxxxxxxx Xxxxx'x Role
4.1 Xxxxxxxx Xxxxx'x Role................................................10
Article V. Maintenance Contracts and Additional Property
5.1 Maintenance Contracts................................................10
5.2 Access to Xxxxxxxx Xxxxx Equipment...................................10
5.3 Use of Xxxxxxxx Xxxxx Software and Xxxxxxxx Xxxxx-Vendor Software....11
5.4 Additional Items of Property.........................................11
5.5 Consents; Further Assurances.........................................11
Article VI. Warranties and Additional Covenants
6.1 Warranties and Additional Covenants..................................11
(a) Performance.................................................11
(b) Service Schedule Information................................12
(c) Viruses.....................................................12
(d) Disabling Codes.............................................12
(e) Pass-Through Warranties and Indemnities.....................12
(f) Software Development........................................12
6.2 Disclaimer of Warranties.............................................13
Article VII. Proprietary Rights
7.1 Definitions..........................................................13
(a) EDS Software................................................13
(b) EDS-Vendor Software.........................................13
(c) Xxxxxxxx Xxxxx Software.....................................13
(d) Xxxxxxxx Xxxxx-Vendor Software..............................13
(e) Developed Software..........................................14
(f) Other Deliverables..........................................14
(g) EDS Development Tools; Residual Technology..................14
(h) Software....................................................14
7.2 EDS Software.........................................................14
7.3 EDS-Vendor Software..................................................14
7.4 Xxxxxxxx Xxxxx Software..............................................15
7.5 Xxxxxxxx Xxxxx-Vendor Software.......................................15
7.6 Developed Software and Other Deliverables............................15
7.7 EDS Development Tools; Residual Technology...........................15
7.8 Further Assurances...................................................16
Article VIII. Data, Confidentiality and Audit Rights
8.1 Data of Xxxxxxxx Xxxxx...............................................16
8.2 Safeguarding Data....................................................16
(a) Restricted Access...........................................16
(b) Security System.............................................16
(c) Loss of Data................................................16
8.3 Privacy Laws.........................................................17
8.4 Confidentiality......................................................17
(a) Scope of Obligation.........................................17
(b) Exceptions..................................................17
8.5 Audit Rights.........................................................18
(a) General.....................................................18
(b) Procedures..................................................18
(c) Results.....................................................18
Article IX. Payments
9.1 Charges for EDS Services.............................................19
9.2 Out-of-Pocket Expenses...............................................19
9.3 Charges for Additional Servcies......................................19
9.4 Time of Payment; Disputed Amounts....................................19
9.5 Taxes................................................................19
(a) General.....................................................19
(b) Reports and Returns.........................................20
(c) Minimization of Taxes.......................................20
(d) Tax Audits..................................................20
9.5 Shared Cost Savings..................................................21
(a) Xxxxxxxx Xxxxx Costs........................................21
(b) Shared Costs................................................21
9.6 Cost and Quality Benchmarking........................................21
(a) Benchmarking................................................21
(b) Benchmarking Schedule.......................................22
(c) Corrective Action for Quality...............................22
(d) Corrective Action for Charges...............................22
Article X. Dispute Escalation, Mediation and Arbitration
10.1 Dispute Escalation...................................................22
10.2 Mediation............................................................22
10.3 Arbitration..........................................................22
(a) Demand for Arbitration; Location............................23
(b) Identification of Arbitrator................................23
(c) Conduct of Arbitration......................................23
(d) Scope of Discovery..........................................23
(e) Authority of Arbitrator.....................................23
(f) Joinder of Parties..........................................23
(g) Award.......................................................23
10.4 Exclusive Remedy.....................................................23
10.5 Continued Performance; Escrow Account................................24
Article XI. Termination
11.1 Termination for Cause................................................24
11.2 Termination for Nonpayment...........................................24
11.3 Termination for Bankruptcy and Related Events........................24
11.4 Termination for Convenience..........................................25
11.5 Effect of Expiration or Termination..................................25
(a) Wind-Down...................................................25
(b) Transition..................................................25
(i) Transition Plan....................................25
(ii) Specifications.....................................25
(iii) Acquisition of Equipment...........................25
(iv) Licensed Programs..................................26
(v) Vendor Software....................................26
(vi) Training...........................................26
(vii) Hiring of Employees................................26
(c) Disclosure of Information...................................26
(d) Charges.....................................................26
(e) Xxxxxxxx Xxxxx'x Right to Extend the Termination Date.......26
Article XII. Indemnities and Liability
12.1 Indemnities..........................................................27
(a) Claims Relating to Space, Taxes and Employees...............27
(b) Claims Relating to Personal Injury and Property Damage......27
(i) General............................................27
(ii) Waiver of Subrogation..............................27
(c) Infringement Claims.........................................28
(i) General............................................28
(ii) Exclusions.........................................28
(iii) Additional Remedy..................................28
(d) Claims Relating to Internet Usage...........................28
(e) Third Party Indemnification of EDS..........................29
(f) Procedures..................................................29
(i) Notice.............................................29
(ii) Control of Defense.................................29
12.2 Liability............................................................30
(a) General Limitation..........................................30
(b) Limitation on Other Damages.................................30
(c) Exceptions to Limitations...................................30
(d) Duty to Mitigate............................................30
(e) Contractual Statute of Limitations..........................30
(f) Acknowledgment..............................................30
Article XIII. Miscellaneous
13.1 Right to Engage in Other Activities..................................30
13.2 Independent Contractors..............................................30
13.3 Entire Agreement; Survival...........................................31
13.4 Amendments; Waiver...................................................31
13.5 Binding Nature; Assignment...........................................31
13.6 Export Regulations...................................................31
13.7 Approvals and Similar Actions........................................32
13.8 Notices..............................................................32
13.9 Excused Performance..................................................32
13.10 Public Relations and Marketing References............................32
13.11 Construction Rules...................................................32
13.12 Accounting Terms.....................................................33
13.13 Governing Law........................................................33
Schedule of Definitions
Schedule 2.1 - Employee Offerees
Schedule 2.2(b) - Key Positions
Schedule 2.7(b) - Xxxxxxxx Xxxxx Competitors
Schedule 3.2 - Statement of Work
Schedule 3.2(a) - Service Levels
Schedule 3.2(b) - Responsibility Matrix
Schedule 3.2(c) - Supported Locations
Schedule 5 (a) - Equipment Leases
Schedule 5 (b) - Software Licenses
Schedule 5 (c)- Maintenance Contracts
Schedule 5 (d)- Xxxxxxxx Xxxxx-Owned Equipment and Xxxxxxxx Xxxxx-Leased Equipment
Schedule 7.1(a) - EDS Software
Schedule 7.1(b) - EDS-Vendor Software
Schedule 7.1(c) - Xxxxxxxx Xxxxx Software
Schedule 7.1(d) - Xxxxxxxx Xxxxx-Vendor Software
Schedule 7.1(f) - Other Deliverables
Schedule 9.1 - Charges
Schedule 9.5(a) - Tax Mapping
Schedule 11.4 - Termination for Convenience Charges
Schedule 13.8 - Addresses for Notices
This
Agreement for Information Technology Services (the
“Agreement”), dated as of April 1, 2001 (the
“Effective Date”), is between each of Xxxxxxxx Xxxxx Co. a Utah
corporation (“Xxxxxxxx Xxxxx”), Electronic Data Systems Corporation, a
Delaware corporation (“EDS”), and EDS Information Services L.L.C., a
Delaware limited liability company (“EIS”). By way of background,
Xxxxxxxx Xxxxx desires that certain of the technology and information systems
operations and functions currently performed by Xxxxxxxx Xxxxx for itself be
performed and managed by a third party experienced in performing and managing
such operations and functions. EDS is a provider of various types of information
technology services, including those desired by Xxxxxxxx Xxxxx, and Xxxxxxxx
Xxxxx has selected EDS as its vendor of choice to provide the technology and
information systems services during the term of this Agreement. This Agreement
documents the terms and conditions under which Xxxxxxxx Xxxxx agrees to
purchase, and EDS agrees to provide, such services. The obligations of EDS set
forth in this Agreement will be performed by EDS, itself and through its direct
and indirect wholly owned subsidiaries, including EIS. All references to EDS in
this Agreement will be deemed to include all such subsidiaries, and EDS and
Xxxxxxxx Xxxxx may be referred to in this Agreement individually as a
“Party” and together as the “Parties”. For convenience of
reference, the Schedule of Definitions attached hereto sets forth the
capitalized terms that are used in this Agreement and identifies the sections
hereof in which the definitions for such terms appear.
Article I.
Relationship Management
| 1.1 |
EDS Account Executive.
During the term of this
Agreement, EDS will provide an individual who will be dedicated to Xxxxxxxx
Xxxxx’x account and who will maintain an office at Xxxxxxxx Xxxxx’x
facilities located in Salt Lake City, UT (the “EDS Account
Executive”). The EDS Account Executive (a) will be acceptable to Xxxxxxxx
Xxxxx, (b) will be the primary contact for Xxxxxxxx Xxxxx in dealing with EDS
under this Agreement, (c) will have overall responsibility for managing and
coordinating the delivery of the EDS Services, (d) will meet regularly with the
Xxxxxxxx Xxxxx Representative and (e) will have the power and authority to make
decisions with respect to actions to be taken by EDS in the ordinary course of
day-to-day management of Xxxxxxxx Xxxxx’x account in accordance with this
Agreement. |
| 1.2 |
Xxxxxxxx Xxxxx Representative. During the term of
this Agreement, Xxxxxxxx Xxxxx will designate a senior level individual who will
be authorized to act as Xxxxxxxx Xxxxx’x primary contact for EDS in dealing
with Xxxxxxxx Xxxxx under this Agreement and who will have the power and
authority to make decisions with respect to actions to be taken by Xxxxxxxx
Xxxxx under this Agreement (the “Xxxxxxxx Xxxxx Representative”). The
Xxxxxxxx Xxxxx Representative may designate in writing a reasonable number of
additional Xxxxxxxx Xxxxx employees to be points of contact for EDS with respect
to particular matters of expertise relating to this Agreement. |
| 1.3 |
Committees. Within (30) days of the Effective Date,
each of EDS and Xxxxxxxx Xxxxx will provide the other with the names of three
members of its management staff (inclusive of the EDS Account Executive and the
Xxxxxxxx Xxxxx Representative) who will serve on a steering committee (the
“Steering Committee”), with the chairman of the Steering Committee
being designated by Xxxxxxxx Xxxxx from one of its committee members. The
Steering Committee will be responsible for overseeing the overall relationship
between the Parties, including those activities pertaining to other agreements
between the Parties. In addition, the Parties have agreed to establish an
Operating Committee, which will be responsible for (a) ensuring sufficient and
continued communications between Xxxxxxxx Xxxxx and EDS, including the provision
of reasonable advance notice of significant business planning initiatives or
changes in architecture relating to the provision of the Services; (b) to
attempt to resolve disputes in accordance with Article X by mutual
agreement of both Parties; (c) to conduct quarterly progress reviews during the
Term; (d) to review any price changes and amendments to this Agreement; (e) to
ensure that all audit findings, security and control issues are effectively
resolved; (f) to annually review the responsibilities of Xxxxxxxx Xxxxx and EDS
hereunder; and (g) to undertake such other responsibilities as Xxxxxxxx Xxxxx
and EDS may mutually agree upon from time to time. Although the EDS Account
Executive and the Xxxxxxxx Xxxxx Representative will remain as members of the
Steering Committee, either Party may change either or both of its other two
representatives from time to time upon written notice to the other. In addition,
the Parties may mutually agree to increase or decrease the size, purpose or
composition of the Steering Committee in an effort for EDS to better provide,
and for Xxxxxxxx Xxxxx to better utilize, the Services. The location of the
Steering Committee meetings will be at the Xxxxxxxx Xxxxx headquarters in Salt
Lake City, Utah. The Steering Committee may, from time to time, create
additional committees, the purposes and meeting schedules therefore to be
determined as mutually agreeable to the parties. |
| 1.4 |
Meetings; Reports. Within 30 days of the
identification of the Steering Committee, the Steering Committee will determine
(a) an appropriate set of periodic meetings to be held by them or other
representatives of the Parties involved with the performance of the Services and
the procedures to be followed for such meetings, including the preparation of
agenda and minutes, and (b) an appropriate set of periodic reports to be issued
by EDS to Xxxxxxxx Xxxxx in addition to those, if any, listed in Schedule
3.2. At a minimum, the meetings will consist of an annual Steering Committee
meeting to conduct a quality review of the EDS Services and monthly Steering
Committee meetings to discuss, among other things, the responsibilities
described above and the strategic objectives of the Parties, and to engage in
long-range planning. |
1.5
Procedures Manual; Migration Plan.
|
(a) |
Procedures Manual. Within two weeks of the
Effective Date EDS will provide Xxxxxxxx Xxxxx an example procedures manual (the
“Procedures Manual”) and the parties shall agree to a written plan,
including a timetable, for the completion of the Procedures Manual;
provided, however, that EDS shall complete and deliver to Xxxxxxxx
Xxxxx the final Procedures Manual no later than 4 months after the Effective
Date. The final version of the Procedures Manual shall be in form and content
reasonably satisfactory to Xxxxxxxx Xxxxx and shall include, but not be limited
to: |
| |
|
(i) |
Periodic Reports.
Periodic reports and detailed requirements
for the periodic reports that shall be
provided to Xxxxxxxx Xxxxx by EDS regarding EDS 's provision of the Services;
|
| |
|
(ii) |
Goals. Additional goals, specifications and documentation
(e.g., operations manuals, user guides,
specifications and management reporting) consistent with the provisions of this Agreement;
|
| |
|
(iii) |
Program Management. A description of the management tools and techniques that EDS shall use to perform the
Services, including, but not limited to, EDS' proprietary Service Excellence Dashboard, Systems Life Cycle
Methodology, and Project Management Methodology; |
| |
|
(iv) |
Disaster Recovery Procedures. Disaster recovery procedures, together with problem escalation policies and
procedures and such other matters as Xxxxxxxx Xxxxx and EDS may agree; |
| |
|
(v) |
Change Control Procedures. A description of the change control procedures and implementation techniques to
be used therefore, including policies and procedures relating to hardware, software, facility changes,
system problem management and emergency changes; and |
| |
|
(vi) |
Executive Summary. An executive summary of the operational obligations of EDS under this Agreement.
|
|
(b) |
Migration Plan. Within 30 days of the
Effective Date, EDS shall prepare and submit to Xxxxxxxx Xxxxx for review and
approval a migration plan detailing the transition of certain Services to
leveraged facilities, and implementation of EDS procedures, methodologies and
disciplines consistent with the Service Schedules (“the Migration
Plan”). |
|
(c) |
Updates. EDS shall periodically update the
Procedures Manual (no less frequently than twice during each contract year of
the term) to reflect changes in the operations, policies and procedures
described therein. All updates to the Procedures Manual will be submitted to
Xxxxxxxx Xxxxx for review, and will be reasonably satisfactory to Xxxxxxxx
Xxxxx. |
|
(d) |
Services. It is the Parties’ intention that the
Parties’ respective obligations under this Agreement will be consistently
performed in accordance with the Procedures Manual. Any failure by either Party
to consistently perform its obligations under this Agreement in accordance with
the Procedures Manual may be referred by the other Party for resolution to the
Operating Committee. |
Article II.
Personnel
| 2.1 |
Transition of Employees. EDS will extend offers of
at-will employment to each Xxxxxxxx Xxxxx employee listed in Schedule
2.1 (each, an “Employee Offeree”) in accordance with EDS’ normal
employment policies, subject to the allowances and provisions set forth in this
Article II, at a base salary at least equal to the base salary such
employee received from Xxxxxxxx Xxxxx immediately prior to the Effective Date.
Each Employee Offeree who accepts EDS’ offer of employment pursuant to
EDS’ normal employment policies and this Article II will become an
EDS employee (each, a “Transitioned Employee”) as of April 1, 2001
(the “Employment Date”) and will be eligible to participate in all
employee benefit plans or employment policies and programs available to
similarly situated EDS employees. |
|
(a) |
Past Service Credits. For purposes of vesting,
participation and benefit accruals for time periods commencing as of the
Employment Date only, but not for benefit accrual during periods prior to the
Employment Date, in any “employee benefit plan” (as such term is
defined in Section 3(3) of the Employee Retirement Income Security Act of 1974,
as amended) maintained by EDS, EDS will recognize and give past service credit
for service earned by each Transitioned Employee during the period of his or her
employment with Xxxxxxxx Xxxxx ending on the Employment Date. Such past service
credit will be established entirely on the information as recorded by Xxxxxxxx
Xxxxx and promptly communicated to EDS, and EDS will not be responsible to
audit, validate or confirm the accuracy of any such information. |
|
(b) |
Waiver of Certain Conditions. EDS will waive drug
tests for each Transitioned Employee as a condition of EDS’ offer of
employment. For all Transitioned Employees, the Electronic Data Systems
Corporation Health Benefit Plan and the Electronic Data Systems Corporation Long
Term Disability Plan provide that any Transitioned Employee is not subject to
any pre-existing condition limitations or exclusions; provided,
however, that there may be some conditions that are covered under
Xxxxxxxx Xxxxx’x health benefit plans that either are not covered or are
covered in a different manner under the Electronic Data Systems Corporation
Health Benefit Plan. For the calendar year in which a Transitioned Employee
becomes employed by EDS, the Electronic Data Systems Corporation Health Benefit
Plan, to the extent applicable, will recognize each such Transitioned
Employee’s (and his or her eligible dependents’) un-reimbursed
expenses to the extent that such paid expenditures are recognized under the
Xxxxxxxx Xxxxx Health Benefit Plan as a deductible applicable to the particular
Transitioned Employee or (eligible dependent) for the same calendar year. All
Transitioned Employees receive the maximum “flexible benefit credits”
(as such term is defined in the Electronic Data Systems Corporation Flexible
Benefit Plan) for medical coverage elected under the Electronic Data Systems
Corporation Flexible Benefit Plan. Proof of insurability will be required for
certain amounts of Group Universal Life coverage as specified in the applicable
policies. |
|
(c) |
Xxxxxxxx Xxxxx Cooperation. Xxxxxxxx Xxxxx will
cooperate with EDS in connection with the making by EDS of the offers of at-will
employment contemplated by this Section 2.1 and the distribution of
employment information to the Employee Offerees. Xxxxxxxx Xxxxx will provide all
necessary or appropriate employee data or benefits information in its custody.
Xxxxxxxx Xxxxx has not and will not make any representation, promise or other
communication, whether written or oral, to the Employee Offerees regarding
employment with EDS or the employment benefits, plans or practices of EDS
without obtaining the prior written consent of EDS. Xxxxxxxx Xxxxx has not taken
and will not take any action that diminishes the right of EDS to dismiss,
subject to applicable law, any Transitioned Employee at any time and for any or
no reason. EDS may request at any time, and Xxxxxxxx Xxxxx agrees to furnish to
EDS or its designated agent, in such format as is mutually agreed, all
reasonably required information pertaining to any and all Employee
Offerees’ employment and benefits as is reasonable for EDS to provide or
administer its benefits or payroll or as may be required by any law or
governmental agency. |
|
(d) |
Payroll Accommodation. Should EDS request that
Xxxxxxxx Xxxxx continue to make payment to any Transitioned Employees on an
interim basis, Xxxxxxxx Xxxxx will do so as an administrative convenience until
such Transitioned Employees can be integrated into the EDS payroll system. In
such event, Xxxxxxxx Xxxxx will be acting solely as an accommodation to EDS, and
EDS will reimburse Xxxxxxxx Xxxxx for all salary paid and employer’s
contributions made by Xxxxxxxx Xxxxx in connection therewith. |
|
(e) |
Transfer of Benefits. The Parties acknowledge that
this Agreement is not made in connection with a sale of assets of Xxxxxxxx
Xxxxx, and the employment of the Transitioned Employees by EDS pursuant to this
Agreement does not constitute a separation from service for purposes of Section
401(k) of the Internal Revenue Code of 1986, as amended (the “Code”).
Accordingly, any benefits contributed into the Xxxxxxxx Xxxxx 401(k) Plan
pursuant to cash or deferred arrangements under Code Section 401(k) are not
eligible for distribution. Consequently, all benefits and participant loans
attributable to Transitioned Employees participating in the Xxxxxxxx Xxxxx
401(k) Plan will be transferred into the EDS 401(k) Plan in accordance with the
terms and conditions of Code Section 414(l) and the Transition Plan listed in
Schedule 11.4. |
|
(f) |
Liabilities for Benefit Claims. Xxxxxxxx Xxxxx, or
the appropriate employee benefit plan or insurer of Xxxxxxxx Xxxxx, will be
liable for all employee welfare benefit plan claims of each Transitioned
Employee incurred through the employee’s last date of employment with
Xxxxxxxx Xxxxx. Xxxxxxxx Xxxxx will be responsible to make all necessary
disclosures to those Employee Offerees or Transitioned Employees who separate
employment from Xxxxxxxx Xxxxx as well as any required filings. Transitioned
Employees will experience a qualifying event (as such term is defined under Code
Section 4980B). Consequently, Xxxxxxxx Xxxxx is responsible to extend
continuation coverage to each Transitioned Employee and otherwise to comply with
all notice and other requirements of Code Section 4980B resulting from the
Employee Offeree’s or Transitioned Employee’s termination of
employment with Xxxxxxxx Xxxxx. Xxxxxxxx Xxxxx will be solely liable for claims
by any Employee Offeree or Transitioned Employee for wages, benefits, third
party fees, assessments, duties, permits or other similar charges and for
unemployment compensation, severance benefits, workers’ compensation and
any other employee benefit to which, in each such case, such Employee Offeree or
Transitioned Employee is entitled as a result of such employee’s employment
or termination of employment with Xxxxxxxx Xxxxx. |
| 2.2 |
Use and Replacement of Personnel.
|
|
(a) |
Account Team. In the event that Xxxxxxxx Xxxxx is
dissatisfied for any significant reason with any EDS personnel providing the
Services (including the EDS Account Executive and any Transitioned Employee
collectively, the “Account Team”), Xxxxxxxx Xxxxx will give written
notice to EDS of such dissatisfaction and the specific reasons for such
dissatisfaction. EDS will have 30 days from the receipt of such notice in which
to remedy such problem to the reasonable satisfaction of Xxxxxxxx Xxxxx. In the
event that Xxxxxxxx Xxxxx remains dissatisfied (in Xxxxxxxx Xxxxx’x
reasonable discretion) with the EDS personnel in question after such 30-day
period, EDS will promptly replace that EDS person. |
|
(b) |
Key Personnel. EDS agrees that each of the EDS
personnel listed in Schedule 2.2(b) (the “Key Positions”) will
devote his or her full time and effort to the performance of the Services.
Before assigning a replacement individual to any of the Key Positions, EDS will
notify Xxxxxxxx Xxxxx of the proposed assignment, will provide Xxxxxxxx Xxxxx
with a resume and any other job-related information about the individual
reasonably requested by Xxxxxxxx Xxxxx and will introduce (either by telephone
or, if requested by Xxxxxxxx Xxxxx, in person) the individual for an interview
by the appropriate Xxxxxxxx Xxxxx representatives. If Xxxxxxxx Xxxxx in good
faith objects to the proposed assignment, the Parties shall attempt to resolve
Xxxxxxxx Xxxxx’x concerns on a mutually agreeable basis. If the Parties
have not been able to resolve Xxxxxxxx Xxxxx’x concerns within 5 business
days, EDS shall not assign the individual to that position and shall propose to
Xxxxxxxx Xxxxx the assignment of another individual of similar and suitable
ability and qualifications. Personnel filling Key Positions may not be
transferred or re-assigned until Xxxxxxxx Xxxxx has approved a suitable
replacement. EDS agrees to use reasonable efforts to provide Xxxxxxxx Xxxxx with
at least 30 days advance written notice prior to transferring or reassigning any
personnel filling EDS Key Positions. |
| 2.3 |
Qualifications and Retention of EDS Personnel.
|
|
(a) |
Qualifications. EDS shall assign an adequate
number of personnel to perform the Services. The Account Team shall be: (i) Good
name and character, and without, to the extent permitted by applicable law, a
history of misconduct or dishonesty; (ii) appropriately competent and
experienced in performing the tasks, works, functions or obligations to be
performed by such personnel; and (iii) if required to perform the applicable
task, work, function or obligation, qualified with appropriate U.S.
qualifications or qualifications which are recognized in or equivalent to
qualifications recognized in the U.S. |
|
(b) |
Turnover Rate. Xxxxxxxx Xxxxx and EDS both
agree that it is in their best interests to keep the turnover rate of the
Account Team to a reasonably low level. Accordingly, if Xxxxxxxx Xxxxx believes
that EDS ‘s turnover rate may be excessive and so notifies EDS, EDS shall
provide data concerning its turnover rate, meet with Xxxxxxxx Xxxxx to discuss
the reasons for, and impact of, the turnover rate and otherwise use reasonable
efforts to keep such turnover rate to a reasonably low level. If appropriate,
EDS shall submit to Xxxxxxxx Xxxxx its proposals for reducing the turnover rate,
and the Parties shall mutually agree on a program to bring the turnover rate
down to an acceptable level. In any event, notwithstanding transfer or turnover
of personnel, EDS shall at all times during the Term remain obligated to perform
the Services without degradation and in accordance with this Agreement. |
|
(c) |
Training. EDS shall implement and maintain a
policy of ongoing training for the Account Team members to ensure that all
Account Team members have the requisite skills and knowledge required to perform
the tasks, works, functions and obligations assigned to them by EDS. |
| 2.4 |
Use of Subsidiaries and Subcontractors. The Services
will be performed by EDS, itself and through its direct and indirect wholly
owned subsidiaries, including EIS. Subject to the other provisions of this
Section 2.4, EDS may assign this Agreement to EIS and may subcontract any
portion of the Services to unaffiliated third parties; provided, however, that
to the extent more than 15% of the work hereunder is to be subcontracted out
(exclusive of telecom services and desktop break/fix services), such subcontract
will only be entered into with Xxxxxxxx Xxxxx’x prior written consent. EDS
will not disclose any confidential information of Xxxxxxxx Xxxxx to any such
subcontractor unless and until the subcontractor has agreed in writing to
protect the confidentiality of such confidential information in the manner
required by Section 8.4 and then only to the extent necessary for the
subcontractor to perform those Services subcontracted to it. EDS will remain
responsible for the obligations performed by any of its subsidiaries or
subcontractors to the same extent as if EDS performed such obligations. |
| 2.5 |
Hiring of Employees. During the term of this
Agreement and for a period of 12 months thereafter, neither Party will solicit,
directly or indirectly, for employment any employee of the other Party who is or
was actively involved in the performance, consumption or evaluation of the
Services without the prior written consent of the other. Notwithstanding the
foregoing, the Parties acknowledge and agree that this Agreement will not
prohibit (a) any executive search or similar business controlled by EDS or
Xxxxxxxx Xxxxx or by any of their respective affiliates from engaging in its
business in the ordinary course in a manner consistent with past practices on
behalf of clients other than EDS or Xxxxxxxx Xxxxx or (b) solicitations through
advertising or other publications of general circulation. |
| 2.6 |
Additional Benefits. Xxxxxxxx Xxxxx shall
provide, at no additional cost to EDS, for any Transitioned Employee or EDS
employee dedicated to the Xxxxxxxx Xxxxx account and assigned to work at
Xxxxxxxx Xxxxx’x Salt Lake City, Utah headquarters, at prices or discounts
comparable to those offered to regular Xxxxxxxx Xxxxx employees: (a) access to
the Xxxxxxxx Xxxxx Wellness Center, campus cafeteria, and the campus credit
union; and (b) a discount equal to the employee discount on Xxxxxxxx Xxxxx
products sold through Xxxxxxxx Xxxxx retail channels. |
| 2.7 |
No Re-Assignment to Competitor. EDS agrees that it
will not assign or otherwise provide Key Personnel to perform Restricted
Activities during the Restricted Period in support of Xxxxxxxx Xxxxx
Competitors’ United States-based Learning and Performance Solutions
Industry operations. For purposes of this Section 2.7, the following
terms shall have the meaning as set forth below: |
|
(a) |
“Learning and Performance Solutions Industry” means the business of
designing, developing, and/or providing consulting services, training seminars,
workshops and personal coaching services and manufacturing and/or distributing
products designed to improve individual and organizational effectiveness and
productivity through, among other things, effective leadership, time and project
management, sales effectiveness, assessment and measurement of return on
investment in organizational training and process improvement, and improved oral
and written communications and presentations. |
|
(b) |
“Xxxxxxxx Xxxxx Competitors” means the companies listed on Schedule
2.7(b), attached hereto. Xxxxxxxx Xxxxx may update the list from time to
time, subject to EDS approval. |
|
(c) |
“Key Employees” means the EDS employees set forth in Section 2,
which may be updated by written agreement of the Parties to add such additional
EDS employees who may be assigned to perform program management and consulting
functions in the future. |
|
(d) |
“Restricted Activities” means the performance by Key Employees of program management and consulting services.
|
|
(e) |
“Restricted Period” means a period of one year following the last day
on which a Key Employee performs program management or consulting services under
this Agreement. |
Article III.
EDS Services
| 3.1 |
Term; Renewal. Unless terminated earlier in
accordance with the provisions of this Agreement, the term of this Agreement
will commence on the Effective Date and will expire on March 31, 2011 (the
“Expiration Date”). The period of time between the Effective Date and
the Expiration date shall be referred to herein as “the Term.”
Thereafter, the Term of this Agreement may be extended by mutual written
agreement of the Parties. |
| 3.2 |
EDS Services. The EDS Services will consist of: (a)
the Statement of Work, attached hereto as Schedule 3.2; (b) Schedule
3.2(a) (the “Service Levels”); (c) the services described
in the Migration Plan; (d) the Responsibility Matrix, attached hereto as
Schedule 3.2(b); the supported locations as described in Schedule
3.2(c) attached hereto; and (e) such other information technology services
as may be agreed upon in writing by the Parties and by reference to this
Agreement made a part hereof. Collectively, the services identified in (a), (b),
(c) (d), and (e) shall be referred to as the “EDS Services” and will
be provided to Xxxxxxxx Xxxxx in Salt Lake City, Utah, and additional locations
specified in the Service Schedules. The EDS Services and any Additional Services
are collectively referred to in this Agreement as the “Services”. All
schedules attached hereto describing the Services shall be referred to herein as
the “Service Schedules.” EDS agrees to undertake project work at no
additional charge to Xxxxxxxx Xxxxx to the extent that such work can be
accomplished using non-leveraged, assigned resources, and to the extent such
work can be accomplished without interfering with the performance of Services
consistent with agreed-to Service Levels. EDS agrees to work flexibly with
Xxxxxxxx Xxxxx, consistent with the Service Schedules and Procedures Manual, to
escalate, prioritize, and manage projects as requested by Xxxxxxxx Xxxxx. |
| 3.3 |
Services Generally; Performance Criteria. The
Services shall be performed by EDS in a manner (including, the degree of
accuracy, quality, completeness, timeliness, responsiveness and efficiency)
equivalent to or better than the manner in which such Services were performed by
Xxxxxxxx Xxxxx and effective sixty days following the Migration Completion Date
(as defined in the Migration Plan), shall meet or exceed the specifications and
the Service Levels referred to in or established in the Service Schedules, which
specifications and Service Levels which shall be consistent with methods and
standards satisfied by well-managed operations performing services similar to
the Services. Except as otherwise expressly provided in this Agreement, EDS has
the sole right and obligation to supervise, manage, contract, direct, procure,
perform or cause to be performed, all Services to be provided pursuant to this
Agreement. |
| 3.4 |
Service Levels. The performance base lines,
performance measurements and performance standards to be used for each
Party’s performance of its respective obligations under this Agreement are
set forth in the Service Schedules. The Parties, through the Steering Committee,
agree to annually review, at a minimum, the Service Levels and reports and
reporting during the term of this Agreement and to determine whether and to what
extent the Service Levels and reports should be adjusted. No such adjustments
may be made without the prior written consent of the Parties. If any services,
functions, or responsibilities of a Party, not specifically described in this
Agreement are reasonably required for the Party’s proper performance of its
obligations under the Agreement, including without limitation those necessary to
satisfy the Service Levels, such services, functions, and responsibilities shall
be deemed to be included within the scope of the Agreement to the same extent
and manner and subject to the same terms and conditions as if specifically
identified in this Section 3.4. Except as otherwise expressly provided in
this Agreement, EDS shall provide the facilities, personnel, and other resources
necessary to provide the Services. |
|
(a) |
Procedures. EDS and Xxxxxxxx Xxxxx will jointly
implement and utilize written change control procedures, approval procedures and
software development methodologies in connection with the performance of their
respective obligations under this Agreement. The Parties may modify or supersede
such change control procedures and approval procedures by mutual written
agreement in the Procedures Manual. EDS may modify or replace such development
methodologies at any time after consulting with and receiving approval from the
Xxxxxxxx Xxxxx Representative, except that such modified or replacement
methodologies may not increase or otherwise alter in any material respect
Xxxxxxxx Xxxxx’x obligations under this Agreement without the prior written
consent of Xxxxxxxx Xxxxx. |
|
(b) |
Reports and Remediation. If EDS fails to attain one or more Service Levels during a
particular month, EDS shall
|
| |
|
(i) |
Investigate. Promptly investigate the root cause of the failure;
|
| |
|
(ii) |
Describe. Provide a description of the
failure, the root cause of the failure and a plan for the corrective action to
be taken by EDS in connection therewith, all of which shall be contained in the
performance report to be delivered by EDS to Xxxxxxxx Xxxxx pursuant to the
Service Schedules in respect of the month during which such failure occurred; |
| |
|
(iii) |
Correct the Error. Use commercially reasonable efforts to correct the problem giving
rise to such failure and begin attaining the Service Level as soon as practicable; and
|
| |
|
(iv) |
Report. Keep the Xxxxxxxx Xxxxx Representative
apprised of the status and efficacy of the remedial efforts being undertaken by
EDS to correct such problem. |
|
(c) |
Meeting.
If after pursuing avenues to address
Service Level failures pursuant to the Procedures Manual or otherwise under this
Agreement, Xxxxxxxx Xxxxx is concerned about the standard of service being
provided by EDS, the Xxxxxxxx Xxxxx Representative may request a meeting with
senior executives of EDS to discuss such concerns. The meeting shall be held at
Xxxxxxxx Xxxxx’x corporate headquarters in Salt Lake City, Utah at a
mutually convenient time on a day which is not more than 10 Business Days
following the day on which the request for the meeting is made by Xxxxxxxx
Xxxxx. Notwithstanding the foregoing, in the event EDS’s performance fails
to meet the applicable Services Levels, at any time during the Term, Xxxxxxxx
Xxxxx may seek all remedies available to it in under the terms of this
Agreement.
|
|
(d) |
Service Credits; Other Remedies.
If EDS fails
to meet the Service Levels for reasons other than the wrongful actions of
Xxxxxxxx Xxxxx or circumstances that constitute force majeure under Section
13.9, then Xxxxxxxx Xxxxx shall be entitled to receive Accrued Service
Credits as defined in Service Schedules. Receipt of Accrued Service Credits, if
any, shall be in addition to, and not in lieu of, any other remedies available
to Xxxxxxxx Xxxxx under this Agreement or at law or equity. |
|
(e) |
Technological Advancements. EDS agrees to use
commercially reasonable efforts, without an increase in cost or charges to
Xxxxxxxx Xxxxx, to keep the technology utilized in providing the Services to
Xxxxxxxx Xxxxx at a level that is comparable with the level of technological
advancement generally attained in the professional services/distribution
industry. |
|
(f) |
Efficient Use of Resources. So long as there is no
material negative impact on the specifications or Service Levels, EDS will use
commercially reasonable efforts, without additional charge or expense to
Xxxxxxxx Xxxxx, to efficiently use the resources chargeable to Xxxxxxxx Xxxxx
(either as part of the base monthly fees or otherwise) used in performing the
Services, including, without limitation, (a) tuning or optimizing the system
(e.g., optimizing the performance of the system software), (b)
consolidating hardware, (c) consolidating software, (d) optimizing the
telecommunications network and (e) making schedule adjustments (consistent with
Xxxxxxxx Xxxxx’x priorities and schedules for the services and EDS’s
obligations to attain and maintain the Service Levels) and delaying the
performance of non-critical jobs within established limits. |
|
(g) |
Customer Surveys. At least once, but no more
than twice during any 12 month period during the term of this Agreement, EDS and
Xxxxxxxx Xxxxx will jointly conduct surveys of Xxxxxxxx Xxxxx executives to
determine the level of Xxxxxxxx Xxxxx’x satisfaction with the Services and
the EDS relationship. The Parties will review the survey results and work
together to mutually agree on any appropriate adjustments to EDS’s
practices and procedures as they relate to the provision of the Services and the
Parties’ relationship. |
|
(a) |
From EDS.
In addition to the Services, EDS will
provide to Xxxxxxxx Xxxxx such other information technology services as Xxxxxxxx
Xxxxx may reasonably request in writing from time to time during the term of
this Agreement and with respect to which the Parties have reached an agreement
regarding the nature and scope of such services, the period of time during which
such services will be provided and the basis upon which EDS will be compensated
therefor (the “Additional Services”). Such agreement with respect to
any Additional Services will be set forth in a written letter agreement which
will contain the following information, as applicable: (i) a reference to this
Agreement, which reference will be deemed to incorporate all of the provisions
of this Agreement; (ii) the date as of which the provisions of the letter will
become effective and, if applicable, the term or period of time during which the
services or resources referenced therein will be provided; (iii) a description
of the services or resources to be provided by EDS pursuant to the letter and
any performance standards applicable to such services or resources; (iv) a
description of Xxxxxxxx Xxxxx’x responsibilities relating to the letter,
including any facilities, hardware, software or other support that will be
required; (v) the amounts payable for the services or resources provided
pursuant to the letter and the schedule on which such amounts will be invoiced;
and (vi) any additional provisions applicable to the services or resources to be
provided pursuant to the letter that are not otherwise set forth in this
Agreement or that are exceptions to the provisions set forth in this Agreement.
|
|
(b) |
From Third Parties. Nothing in this Section
3.6 or elsewhere in this Agreement will be deemed to limit Xxxxxxxx
Xxxxx’x right to solicit or use providers other than EDS (including any
Xxxxxxxx Xxxxx in-house capabilities) to render information technology services
that are in addition to, or outside the scope of, the Services; provided,
however, that Xxxxxxxx Xxxxx will request from EDS a new or additional
services proposal for any new information technology and information systems
management services contemplated (a “New Services Proposal”). Xxxxxxxx
Xxxxx may at its sole discretion also obtain New Services Proposals from other
third party service providers. Xxxxxxxx Xxxxx shall retain the right to select
any third party provider it may choose (or to use Xxxxxxxx Xxxxx personnel), for
any reason whatsoever in Xxxxxxxx Xxxxx ‘s sole and absolute discretion.
Xxxxxxxx Xxxxx may select any third party provider to perform any new services,
including but not limited to, application systems development, contract
programming, performance of systems planning projects, operation of new
platforms, and performance of other information technology services. |
|
(c) |
EDS Responsibilities to Other Service Providers. To the extent Xxxxxxxx Xxxxx performs any
of the new services itself, or retains a third party provider to do so, EDS
shall cooperate fully with Xxxxxxxx Xxxxx or any such third party provider, all
at Xxxxxxxx Xxxxx’x reasonable direction. |
|
(d) |
Xxxxxxxx Xxxxx Conditions to Using Third Party
Services. Xxxxxxxx Xxxxx agrees that if it uses a
third party to perform services related to its information technology needs,
Xxxxxxxx Xxxxx will use commercially reasonable efforts to ensure that such
services will not affect the ability of, or cost to, EDS to perform its
obligations under this Agreement, and EDS agrees to reasonably cooperate with
any such third party. As a condition to any such cooperation, the third party
must agree in writing to the security and confidentiality obligations and
procedures reasonably required by EDS. Xxxxxxxx Xxxxx will keep EDS apprised of
any material changes to Xxxxxxxx Xxxxx’x information technology environment
that are made by Xxxxxxxx Xxxxx or any third party. EDS will not be responsible
or penalized for any adverse impact on Xxxxxxxx Xxxxx, the Services or the
Service Levels resulting from the acts or omissions of Xxxxxxxx Xxxxx or a third
party, but will use commercially reasonable efforts to mitigate it. EDS shall
immediately notify Xxxxxxxx Xxxxx if an act or omission of EDS or a third party
may cause a problem or delay in providing the Services and shall diligently work
with Xxxxxxxx Xxxxx or the third party to prevent or circumvent the problem or
delay. Xxxxxxxx Xxxxx shall reimburse EDS for any documented costs incurred by
EDS as the result of Xxxxxxxx Xxxxx using a third party service provider. |
| 3.6 |
Reliance on Instructions. Unless otherwise
specifically provided in the Procedures Manual, in performing its obligations
under this Agreement, EDS will be entitled to rely upon any routine
instructions, authorizations, approvals or other information provided to EDS by
the Xxxxxxxx Xxxxx Representative or, as to areas of competency specifically
identified in writing by the Xxxxxxxx Xxxxx Representative, by any other
Xxxxxxxx Xxxxx personnel identified by the Xxxxxxxx Xxxxx Representative, from
time to time, as having authority to provide the same on behalf of Xxxxxxxx
Xxxxx in such person’s area of competency. Unless EDS knew of any error,
incorrectness or inaccuracy in such instructions, authorizations, approvals or
other information, EDS will incur no liability or responsibility of any kind in
relying on or complying with any such instructions or information. |
Article IV.
Xxxxxxxx Xxxxx'x Role
| 4.1 |
Xxxxxxxx Xxxxx’x Role. During the term of this
Agreement and in connection with EDS’ performance of its obligations
hereunder, Xxxxxxxx Xxxxx will, at its own cost and expense, have the
obligations to EDS, and retain the responsibilities, described in the Service
Schedules. Xxxxxxxx Xxxxx acknowledges and agrees that EDS’ ability to
perform the Services in accordance with this Agreement is contingent upon
Xxxxxxxx Xxxxx’x timely performance of those obligations assigned to
Xxxxxxxx Xxxxx hereunder. |
| |
Xxxxxxxx
Xxxxx shall, throughout the Term, provide to EDS personnel assigned to perform
Services at Xxxxxxxx Xxxxx facilities, adequate access to facilities, office
supplies, and basic office infrastructure and services. |
Article V.
Maintenance Contracts and Additional Property
| 5.1 |
Maintenance Contracts. Subject to Xxxxxxxx Xxxxx
having obtained any required consents, as of the Effective Date, Xxxxxxxx Xxxxx
will designate EDS as Xxxxxxxx Xxxxx’x representative for purposes of
managing, and EDS will manage the Xxxxxxxx Xxxxx maintenance contracts listed in
Schedule 5 (the “Maintenance Contracts”). EDS shall provide
Xxxxxxxx Xxxxx with 3 months prior written notice of any renewal, termination,
cancellation dates and fees for any Maintenance Contracts. EDS shall not renew,
modify, terminate or cancel, or request or grant any consents or waivers under
any Maintenance Contracts without the prior written consent of Xxxxxxxx Xxxxx.
Any modification, termination or cancellation fees or charges imposed upon
Xxxxxxxx Xxxxx in connection with any such modification, termination or
cancellation of, or consent or waiver under, the Maintenance Contracts, obtained
or given without Xxxxxxxx Xxxxx’x prior written consent, shall be paid by
EDS. |
| |
EDS
shall (a) receive any invoice submitted by third parties in connection with the
Maintenance Contracts (the “Maintenance Contract Invoices”), (b)
review the Maintenance Contract Invoices in a timely manner and (c) submit such
Maintenance Contract Invoices to Xxxxxxxx Xxxxx for payment within a reasonable
period of time after receipt thereof, but in no event in less time than
necessary to enable Xxxxxxxx Xxxxx to timely pay such Maintenance Contract
Invoices in accordance with Xxxxxxxx Xxxxx’x normal payment policies.
Xxxxxxxx Xxxxx shall pay the Maintenance Contract Invoices received, reviewed
and submitted by EDS to Xxxxxxxx Xxxxx. Xxxxxxxx Xxxxx shall be responsible for
any late fees in respect to the Maintenance Contract Invoices, unless such late
fees were incurred as a result of EDS’s failure to submit the Maintenance
Contract Invoices in a timely manner (as set forth in the preceding sentence),
in which event EDS shall be solely responsible for such late fees. |
| |
EDS
shall promptly notify Xxxxxxxx Xxxxx of any breach of, or misuse or fraud in
connection with, any Maintenance Contracts of which EDS becomes aware and shall
cooperate with Xxxxxxxx Xxxxx to prevent or stay any such breach, misuse or
fraud. EDS shall not be liable for failures by third parties to perform in
accordance with the applicable Maintenance Contract requirements except to the
extent such failure is attributable to EDS’s failure to properly perform
management services hereunder. |
| 5.2 |
Access to Xxxxxxxx Xxxxx Equipment. During the term
of this Agreement, Xxxxxxxx Xxxxx will allow, or will obtain the right to allow,
EDS (and any subcontractors of EDS engaged in accordance with this Agreement) to
Access at no charge any equipment owned or leased by Xxxxxxxx Xxxxx that is
reasonably necessary for EDS to perform Services hereunder (the “Xxxxxxxx
Xxxxx Equipment”). For purposes of this Agreement, the term
“Access” means the enjoyment of physical and legal use and operation
of a specified item of property in order for EDS to perform the Services. EDS
agrees that it will use the Xxxxxxxx Xxxxx Equipment leased by Xxxxxxxx Xxxxx in
a manner consistent with the terms and conditions of such lease. |
| |
Except
as otherwise provided by this Agreement, EDS will, at its cost and expense,
manage the support and maintenance of the Xxxxxxxx Xxxxx Equipment in accordance
with the specifications herein and ensure that all Xxxxxxxx Xxxxx equipment is
kept in good working order. EDS will be responsible for refreshing Xxxxxxxx
Xxxxx desktop equipment, including but not limited to, personal computers,
laptop computers, printers, and personal communication devises used by the
Transitioned Employees as of the Effective Date. |
| 5.3 |
Use of Xxxxxxxx Xxxxx Software and Xxxxxxxx Xxxxx-Vendor
Software. During the term of this Agreement, Xxxxxxxx Xxxxx
will allow, or will obtain the right to allow, EDS (and any subcontractors of
EDS engaged in accordance with this Agreement) to Access at no charge (a) the
Xxxxxxxx Xxxxx Software and (b) subject to Xxxxxxxx Xxxxx having obtained any
required consents, the Xxxxxxxx Xxxxx-Vendor Software. Xxxxxxxx Xxxxx will pay
all costs and expenses with respect to the Xxxxxxxx Xxxxx Software and the
Xxxxxxxx Xxxxx-Vendor Software. Xxxxxxxx Xxxxx represents and warrants to EDS
that (a) it is not (and, to its knowledge, the licensor is not) in default in
any material respect under any of the licenses applicable to the Xxxxxxxx
Xxxxx-Vendor Software and (b) Xxxxxxxx Xxxxx has delivered to EDS complete
copies of those license terms and conditions relating to the use and operation
of the Xxxxxxxx Xxxxx-Vendor Software (including all amendments thereto) as in
effect on the Effective Date. EDS agrees that it will use the Xxxxxxxx
Xxxxx-Vendor Software in a manner consistent with such terms and conditions.
Xxxxxxxx Xxxxx agrees not to allow any of such terms and conditions to be
amended in any material respect without the prior written consent of EDS. |
| 5.4 |
Additional Items of Property. If any additional
items of property, whether in the form of equipment, software and upgrades
thereto or otherwise, are required by EDS to perform the Services or otherwise
to meet its obligations hereunder, whether in addition to or in replacement of
any then existing property, EDS will inform Xxxxxxxx Xxxxx and, with Xxxxxxxx
Xxxxx’x prior written consent, will obtain such additional items and will
provide them to Xxxxxxxx Xxxxx at Xxxxxxxx Xxxxx’x expense or on such other
terms and conditions as the Parties mutually agree. If Xxxxxxxx Xxxxx, on its
own, decides to acquire any additional items of property for use in Xxxxxxxx
Xxxxx’x information technology environment, whether in addition to or in
replacement of any then existing property, Xxxxxxxx Xxxxx will consult with, and
obtain the consent of, EDS prior to acquiring such property. If Xxxxxxxx Xxxxx
does not approve an acquisition proposed by EDS or does not obtain EDS’
consent to Xxxxxxxx Xxxxx’x own acquisition of property, EDS will not be
responsible or penalized for any adverse impact on Xxxxxxxx Xxxxx, the Services
or the Service Levels resulting therefrom, but will use commercially reasonable
efforts to mitigate it. If EDS’ responsibilities in connection with this
Section 5.4 (such as site preparation, transportation, installation or
maintenance) require resources in addition to those then being used to perform
the Services, such resources will be provided as Additional Services. |
| 5.5 |
Consents; Further Assurances. EDS will work with and
assist Xxxxxxxx Xxxxx in Xxxxxxxx Xxxxx’x efforts to obtain such consents
as are required for the transactions contemplated by this Article V, with
Xxxxxxxx Xxxxx paying such transfer, upgrade or other fees as are necessary to
obtain a required consent. Xxxxxxxx Xxxxx will provide EDS with written evidence
of such consents upon Xxxxxxxx Xxxxx’x receipt thereof, if EDS has not
otherwise received satisfactory evidence thereof. If a required consent is not
obtained, (a) unless and until such required consent is obtained, EDS will
determine and adopt, subject to Xxxxxxxx Xxxxx’x prior written consent,
such alternative approaches as are necessary and sufficient to perform the
Services without such required consent and (b) the Parties will mutually agree
in writing on any appropriate adjustments to this Agreement, whether with
respect to the scope of the Services, the Service Levels, EDS’ charges or
otherwise. In addition, EDS and Xxxxxxxx Xxxxx agree to execute and deliver such
other instruments and documents as either Party reasonably requests to evidence
or effect the transactions contemplated by this Article V. |
Article VI.
Warranties and Additional Covenants
| 6.1 |
Warranties
and Additional Covenants.
|
|
(a) |
Performance. EDS represents and warrants that all
Services will be performed in a professional and workmanlike manner, consistent
with the standards in the industry. Further, EDS covenants that all Services
will be performed consistent with (i) the specifications and conditions set
forth in the Service Schedules, and (ii) any and all representations or in this
Agreement or any attachment thereto. |
|
(b) |
Service Schedule Information. Each party represents
to the other that it has taken reasonable care to ensure that the information
furnished by said party to the other on which the Service Schedules are based
and the charges to be paid by Xxxxxxxx Xxxxx for the Services are determined, as
set forth in this Agreement, is accurate and complete in all material respects.
To the extent that such information turns out to be inaccurate or incomplete in
any material respect, the Parties agree to negotiate in good faith adjustments
to the applicable Service Schedule(s) and / or the charges to be paid by
Xxxxxxxx Xxxxx for the Services, as appropriate. |
|
(c) |
Viruses. Each Party will use commercially reasonable
measures to screen any software provided or made available by it to the other
Party hereunder for the purpose of avoiding the introduction of any
“virus” or other computer software routine or hardware components
which are designed (i) to permit access or use by third parties to the software
of the other Party not authorized by this Agreement, (ii) to disable or
damage hardware or damage, erase or delay access to software or data of the
other Party or (iii) to perform any other similar actions. |
|
(d) |
Disabling Codes. EDS will not, without informing the
Xxxxxxxx Xxxxx Representative, knowingly insert into the software used by it
hereunder any code or other device which would have the effect of disabling,
damaging, erasing, delaying or otherwise shutting down all or any portion of the
Services or the hardware, software or data used in providing the Services. EDS
will not invoke such code or other device at any time, including upon expiration
or termination of this Agreement for any reason, without Xxxxxxxx Xxxxx’x
prior written consent. |
|
(e) |
Pass-Through Warranties and Indemnities. EDS agrees
that it will pass through to Xxxxxxxx Xxxxx any rights it obtains under
warranties and indemnities given by its third party subcontractors or suppliers
in connection with any services, software, equipment or other products provided
by EDS pursuant to this Agreement to the extent permitted by the applicable
subcontractors or suppliers. If pass-through warranties and indemnities
reasonably acceptable to Xxxxxxxx Xxxxx are not available from a particular
subcontractor or supplier, EDS will discuss the matter with Xxxxxxxx Xxxxx prior
to engaging the particular subcontractor or supplier, and the Parties will
mutually determine to either accept the terms available from such subcontractor
or supplier, in which case EDS will enforce the applicable warranty or indemnity
on behalf of Xxxxxxxx Xxxxx as provided below, or deal with another vendor of
comparable services, software, equipment or other products that will provide
warranties and indemnities reasonably acceptable to Xxxxxxxx Xxxxx. In the event
of a third party software or equipment nonconformance, EDS will coordinate with,
and be the point of contact for resolution of the problem through, the
applicable vendor and, upon becoming aware of a problem, will notify such vendor
and will use commercially reasonable efforts to cause such vendor to promptly
repair or replace the nonconforming item in accordance with such vendor’s
warranty. If any warranties or indemnities may not be passed through, EDS agrees
that it will, upon the request of Xxxxxxxx Xxxxx, take reasonable action to
enforce any applicable warranty or indemnity that is enforceable by EDS in its
own name. However, EDS will have no obligation to resort to litigation or other
formal dispute resolution procedures to enforce any such warranty or indemnity
unless EDS chooses to do so and Xxxxxxxx Xxxxx agrees to reimburse EDS for all
costs and expenses incurred in connection therewith, including reasonable
attorneys’ fees and expenses. |
|
(f) |
Software Development. For a period of 180 days
following acceptance of any Developed Software (as defined in Section
7.1(e)) in accordance with the approval procedures adopted by the Parties
pursuant to Article 3, EDS warrants that each item of Developed Software
will conform in all material respects to the written technical specifications
agreed to by the Parties in accordance with the software development
methodologies adopted by the Parties pursuant to Article 3. As soon as
reasonably practicable after discovery by Xxxxxxxx Xxxxx or EDS of a failure of
the Developed Software to so conform (a “Nonconformance”), Xxxxxxxx
Xxxxx or EDS, as applicable, will deliver to the other a statement and
supporting documentation describing in reasonable detail the alleged
Nonconformance. If EDS confirms that there is a Nonconformance, then EDS will
use commercially reasonable efforts to correct such Nonconformance. The methods
and techniques for correcting Nonconformances will be at the sole discretion of
EDS. The foregoing warranty will not extend to any Nonconformances caused (i) by
any change or modification to software without EDS’ prior written consent
or (ii) by Xxxxxxxx Xxxxx operating software otherwise than (a) in accordance
with the applicable documentation, (b) for the purpose for which it was designed
or (c) on hardware not recommended, supplied or approved in writing by EDS.
Furthermore, if, after undertaking commercially reasonable efforts to remedy a
breach by EDS of the foregoing warranty, EDS, in the exercise of its reasonable
business judgment, determines that any repair, adjustment, modification or
replacement is not feasible, or in the event that the Developed Software
subsequent to all repairs, adjustments, modifications and replacements continues
to fail to meet the foregoing warranty, Xxxxxxxx Xxxxx will return the Developed
Software to EDS, and EDS will credit to Xxxxxxxx Xxxxx, in a manner and on a
schedule agreed to by the Parties and as Xxxxxxxx Xxxxx’x sole and
exclusive remedy for such failure, an amount equal to the charges actually paid
by Xxxxxxxx Xxxxx to EDS for the Developed Software that has failed to meet the
foregoing warranty. Notwithstanding the other provisions of this Section
6.1(f), upon the written request of Xxxxxxxx Xxxxx, EDS will use
commercially reasonable efforts to correct an alleged Nonconformance for which
EDS is not otherwise responsible hereunder because it is caused or contributed
to by one of the factors listed above and, to the extent that such correction
cannot be performed within the scope of the Services, such correction will be
paid for by Xxxxxxxx Xxxxx at EDS’ then current commercial billing rates
for the technical and programming personnel and other materials utilized by EDS. |
| 6.2 |
Disclaimer of Warranties. EXCEPT AS OTHERWISE
EXPRESSLY PROVIDED IN SECTION 6.1 AND ARTICLE V, EDS MAKES NO
REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING ANY MATTER,
INCLUDING THE MERCHANTABILITY, SUITABILITY, ORIGINALITY, FITNESS FOR A
PARTICULAR USE OR PURPOSE, OR RESULTS TO BE DERIVED FROM THE USE, OF ANY
INFORMATION TECHNOLOGY SERVICE, SOFTWARE, HARDWARE OR OTHER MATERIALS
PROVIDED UNDER THIS AGREEMENT, OR THAT THE OPERATION OF ANY SUCH SERVICE,
SOFTWARE, HARDWARE OR OTHER MATERIALS WILL BE UNINTERRUPTED OR
ERROR-FREE. |
Article VII.
Proprietary Rights
| 7.1 |
Definitions.
For purposes of this Agreement:
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(a) |
EDS Software. The term “EDS Software”
means any Software that is owned or developed by or on behalf of EDS before the
Effective Date, or is acquired or developed by or on behalf of EDS after the
Effective Date without reference to or use of the intellectual property of
Xxxxxxxx Xxxxx. The EDS Software that is expected, as of the Effective Date, to
be used initially by EDS in performing the Services is listed in Schedule
7.1(a). |
|
(b) |
EDS-Vendor Software. The term “EDS-Vendor
Software” means any Software that is proprietary to any party other than
EDS or Xxxxxxxx Xxxxx and is licensed to EDS. The EDS-Vendor Software that is
expected, as of the Effective Date, to be used initially by EDS in performing
the Services is listed in Schedule 7.1(b). |
|
(c) |
Xxxxxxxx Xxxxx Software. The term “Xxxxxxxx
Xxxxx Software” means any Software that is owned or developed by or on
behalf of Xxxxxxxx Xxxxx before the Effective Date, or is acquired or developed
by or on behalf of Xxxxxxxx Xxxxx (other than by EDS) after the Effective Date
without reference to or use of the intellectual property of EDS. The Xxxxxxxx
Xxxxx Software that is expected, as of the Effective Date, to be used initially
by EDS in performing the Services is listed in Schedule 7.1(c). |
|
(d) |
Xxxxxxxx Xxxxx-Vendor Software. The term
“Xxxxxxxx Xxxxx-Vendor Software” means any Software that is
proprietary to any party other than Xxxxxxxx Xxxxx or EDS and is licensed to
Xxxxxxxx Xxxxx. The Xxxxxxxx Xxxxx-Vendor Software that is expected, as of the
Effective Date, to be used initially by EDS in performing the Services is listed
in Schedule 7.1(d). |
|
(e) |
Developed Software. The term
“Developed Software” means any Software that is developed and
delivered by EDS under this Agreement, and paid for by Xxxxxxxx Xxxxx, (i)
including any Software Changes made by EDS to Xxxxxxxx Xxxxx Software or
Xxxxxxxx Xxxxx-Vendor Software as part of the Services, but (ii) excluding (A)
any Software Changes made by EDS to EDS Software or EDS-Vendor Software, (B) any
EDS Software or EDS Development Tools that are used in developing, modifying or
enhancing any Developed Software hereunder and (C) any Residual Technology. |
|
(f) |
Other Deliverables. The term “Other
Deliverables” means those tangible, viewable items other than Software
listed in Schedule 7.1(f) that are developed and delivered by EDS under
this Agreement, and paid for by Xxxxxxxx Xxxxx. |
|
(g) |
EDS Development Tools; Residual Technology. The term
“EDS Development Tools” means all know-how, intellectual property,
methodologies, processes, technologies, algorithms, software or development
tools used in performing the Services which (i) are based on trade secrets or
proprietary information of EDS, (ii) are developed or created by or on behalf of
EDS without reference to or use of the intellectual property of Xxxxxxxx Xxxxx
or (iii) are otherwise owned or licensed by EDS. The term “Residual
Technology” means the ideas, concepts, methodologies, processes and
know-how which are developed or created by EDS in the course of performing the
Services and may be retained by EDS’ employees in intangible form. |
|
(h) |
Software. The term “Software”, as used in
the terms that are defined in this Section 7.1, means computer programs,
together with input and output formats, source and object codes, program
listings, data models, flow charts, outlines, narrative descriptions, operating
instructions and supporting documentation, and includes the tangible media upon
which such programs and documentation are recorded, including all authorized
reproductions of such programs. Except as otherwise expressly provided in this
Agreement, Software includes any corrections, enhancements, translations,
modifications, updates, new releases, new versions and other changes thereof or
thereto (collectively, “Software Changes”). |
| 7.2 |
EDS Software. All EDS Software, including all
Software Changes made thereto, will be and remain EDS’ property, and
Xxxxxxxx Xxxxx will have no rights or interest therein. EDS will grant to
Xxxxxxxx Xxxxx a perpetual (subject to compliance with the applicable license),
nontransferable, nonexclusive license to use, after the Expiration Date or the
effective date of termination by Xxxxxxxx Xxxxx, whichever is applicable, the
object code form of any application software programs, including existing
documentation, of the EDS Software (if any) then being used by EDS in performing
the Services, including those items of EDS Software being used at one or more
EDS data centers as part of the Services as may be reasonably necessary for
Xxxxxxxx Xxxxx’x continued use of Xxxxxxxx Xxxxx Software, Xxxxxxxx Xxxxx
Vendor Software and any other Software to which Xxxxxxxx Xxxxx has continuing
rights, solely for the purpose of Xxxxxxxx Xxxxx (or the Third Party Provider
assuming the obligations of EDS hereunder) performing the information and
technology systems services previously performed by EDS hereunder (the
“Licensed Programs”), subject to EDS and Xxxxxxxx Xxxxx entering into
an agreement, in form and substance reasonably satisfactory to EDS and Xxxxxxxx
Xxxxx, containing such terms and conditions as may be appropriate.
Notwithstanding anything to the contrary in this Agreement, such license will
not include the right to use any Software Changes with respect to the EDS
Software other than those in use at the time the license is granted. |
| 7.3 |
EDS-Vendor Software. All EDS-Vendor Software will be
and remain the property of the applicable third party vendor(s), and, as between
EDS and Xxxxxxxx Xxxxx, all Software Changes made by EDS thereto will be owned
by EDS. EDS will obtain all consents necessary to permit EDS (and any
subcontractors of EDS engaged in accordance with this Agreement) to Access the
EDS-Vendor Software in connection with the performance of the Services and will
pay all costs and expenses associated therewith. During the term of this
Agreement, EDS will pay all required license, installation, maintenance and
upgrade fees with respect to the EDS-Vendor Software. |
| 7.4 |
Xxxxxxxx Xxxxx Software. All Xxxxxxxx Xxxxx
Software, excluding any Software Changes made by EDS thereto as part of the
Services (which will be Developed Software and will be owned as set forth in
Section 7.4), will be and remain Xxxxxxxx Xxxxx’x property.
The Xxxxxxxx Xxxxx Software will be made available to EDS in such form and on
such media as EDS may reasonably request, together with appropriate
documentation. |
| 7.5 |
Xxxxxxxx Xxxxx-Vendor Software. All Xxxxxxxx
Xxxxx-Vendor Software, excluding any Software Changes made by EDS thereto as
part of the Services (which will be Developed Software and, subject to any
Xxxxxxxx Xxxxx-Vendor rights or restrictions, will be owned as set forth in
Section 7.6), will be and remain the property of the applicable third
party vendor(s). The Xxxxxxxx Xxxxx-Vendor Software will be made available to
EDS in such form and on such media as EDS may reasonably request. |
| 7.6 |
Developed Software and Other Deliverables. Each
party will retain all rights, including trademarks, patents, trade secrets and
copyrights (“IP Rights”), in any software, ideas, concepts, know-how,
development tools, techniques or any other proprietary material or information
that it owned or developed prior to the date of this Agreement, or acquired or
developed after the date of this Agreement without reference to or use of the
intellectual property of the other party. Subject to any third party rights or
restrictions and the other provisions of this paragraph 7.6, Xxxxxxxx
Xxxxx will own the IP Rights (either as a work for hire or by assignment from
EDS) in and to all deliverables that (a) are developed and delivered by EDS
under this Agreement and (b) are paid for by Xxxxxxxx Xxxxx. Notwithstanding
anything to the contrary in this Agreement, EDS (i) will retain all IP Rights in
and to all software development tools, know-how, methodologies, processes,
technologies or algorithms used in performing the Services which are based on
previously developed trade secrets or proprietary information of EDS or are
otherwise owned or licensed by EDS (collectively, “tools”), (ii) will
be free to use the ideas, concepts and know-how which are developed or created
in the course of performing the Services and may be retained by EDS’
employees in intangible form, all of which constitute substantial rights on the
part of EDS in the technology developed as a result of the Services performed
under this Agreement, and (iii) will retain ownership of any prior-developed
EDS-owned software or tools (“EDS Tools”) that are used in producing
the deliverables and become embedded in the deliverables. EDS hereby grants to
Xxxxxxxx Xxxxx a perpetual (subject to compliance with this sentence),
royalty-free, nontransferable, nonexclusive license to use such embedded EDS
Tools (if any) solely in connection with Xxxxxxxx Xxxxx’x internal use and
exploitation of the deliverables and only so long as such software and tools (if
any) remain embedded in the deliverables and are not separated therefrom. EDS
will own patent rights with respect to processes and methodologies developed by
EDS in connection with deliverables other than the copyright ownership
rights granted to Xxxxxxxx Xxxxx pursuant to this paragraph
7.6. To the extent that EDS commercializes any patent or deliverable
designed, created or paid-for by Xxxxxxxx Xxxxx, EDS shall negotiate in good
faith with Xxxxxxxx Xxxxx a royalty. Such royalty shall be in a reasonable
amount under all of the circumstances surrounding such commercialization and the
total of such royalty payments shall in any event be limited to the amount
required to reimburse Xxxxxxxx Xxxxx for any and all development fees incurred
in creating said patent or deliverable, which limitation shall be agreed upon in
writing at the time the royalty is negotiated. No licenses will be deemed to
have been granted by either party to any of its patents, trade secrets,
trademarks or copyrights, except as otherwise expressly provided in this
Agreement. Nothing in this Agreement (A) will require EDS or Xxxxxxxx Xxxxx to
violate the proprietary rights of any third party in any software or otherwise
or (B) will impair EDS’ right to acquire, license, market, distribute,
develop for itself or others or have others develop for EDS similar technology
performing the same or similar functions as the technology and Services
contemplated by this Agreement. The provisions of this paragraph 7.6 will
survive the expiration or termination of this Agreement for any reason. |
| 7.7 |
EDS Development Tools; Residual Technology.
Notwithstanding anything to the contrary in this Agreement, EDS will retain all
right, title and interest in and to, and will be free to use, (a) the EDS
Development Tools and (b) subject to the confidentiality obligations set forth
in Section 8.4, the Residual Technology. The Parties acknowledge and
agree that EDS’ right, title and interest in and to the Residual Technology
constitute substantial rights in the technology developed as a result of the
Services performed under this Agreement. No licenses will be deemed to have been
granted by either Party to any of its patents, trade secrets, trademarks or
copyrights, except as otherwise expressly provided in this Agreement. Nothing in
this Agreement will require EDS or Xxxxxxxx Xxxxx to violate the proprietary
rights of any third party in any software or otherwise. |
| 7.8 |
Further Assurances. EDS and Xxxxxxxx
Xxxxx agree to execute and deliver such other instruments and documents as
either Party reasonably requests to evidence or effect the transactions
contemplated by this Article VII. The provisions of this Article
VII will survive the expiration or termination of this Agreement for any
reason. |
Article VIII.
Data, Confidentiality and Audit Rights
| 8.1 |
Data of Xxxxxxxx Xxxxx. As between EDS and Xxxxxxxx
Xxxxx, information relating to Xxxxxxxx Xxxxx or its customers (the
“Xxxxxxxx Xxxxx Data”) is confidential, will be subject to Section
8.4 and will be and remains the property of Xxxxxxxx Xxxxx. EDS (and any
subcontractors of EDS engaged in accordance with this Agreement) is hereby
authorized to have access to and to make use of the Xxxxxxxx Xxxxx Data for the
term of this Agreement as is appropriate for the performance by EDS of its
obligations hereunder. Upon expiration or termination of this Agreement for any
reason, subject to any record retention requirements of EDS, EDS will, at
Xxxxxxxx Xxxxx’x expense, return to Xxxxxxxx Xxxxx all of the Xxxxxxxx
Xxxxx Data in EDS’ possession and in EDS’ then existing
machine-readable format and media. EDS will not use the Xxxxxxxx Xxxxx Data for
any purpose other than providing the Services. At no time shall any of the
computer or other files or other materials or information containing Xxxxxxxx
Xxxxx Data be stored or held in a form or manner not reasonably accessible to
Xxxxxxxx Xxxxx through the Xxxxxxxx Xxxxx Representative. Subject to
restrictions contained in any relevant contracts, EDS shall provide the Xxxxxxxx
Xxxxx Representative or such other person or persons as may be designated in
writing by Xxxxxxxx Xxxxx all such files and other materials promptly upon the
reasonable request of Xxxxxxxx Xxxxx, including hardware and software keys and
such information as to format encryption (if any) and any other specification or
information necessary for Xxxxxxxx Xxxxx to retrieve, read, revise and/or
maintain such files and information. |
| 8.2 |
Safeguarding Data. EDS will maintain safeguards
against the destruction, loss or alteration of the Xxxxxxxx Xxxxx Data in the
possession of EDS, which safeguards are consistent with those written procedures
established and in use by Xxxxxxxx Xxxxx as of the Effective Date and provided
to EDS. To the extent that any such procedures have not been established, EDS
will maintain safeguards that are no less rigorous than those maintained by EDS
for its own information of a similar nature. Xxxxxxxx Xxxxx will have the right
to establish backup security for the Xxxxxxxx Xxxxx Data and to keep backup data
and data files in its possession if it so chooses; provided,
however, that EDS will have access to such backup data and data files as
is reasonably required by EDS. |
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Without limiting the above:
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(a) |
Restricted Access. EDS Personnel shall not
attempt to access, or allow access to, any data, files or programs to which they
are not entitled under this Agreement. If such Access is attained, EDS shall
immediately report the incident to the Xxxxxxxx Xxxxx Representative, describe
in detail any accessed materials and the method of access and, upon request,
provide to the Xxxxxxxx Xxxxx Representative copies of any accessed materials;
and |
|
(b) |
Security System. EDS shall institute
reasonable system security measures to guard against the unauthorized access,
alteration or destruction of software and Xxxxxxxx Xxxxx Data. Such measures
shall include the installation of software which (i) requires all users to enter
a user identification code and password prior to gaining access to the system,
(ii) controls and tracks the addition and deletion of users, and (iii) controls
user access to areas and features of the system. |
|
(c) |
Loss of Data. If any Xxxxxxxx Xxxxx Data is
lost or damaged due to EDS’ failure to perform Services as required under
this Agreement, EDS shall use commercially reasonable efforts to replace or
regenerate such lost or damaged Xxxxxxxx Xxxxx Data without additional charge or
expense and shall not require Xxxxxxxx Xxxxx to pay for any increased resource
usage from the replacement or regeneration of such lost or damaged data. |
| 8.3 |
Privacy Laws. The Parties acknowledge and agree that
Xxxxxxxx Xxxxx will be and remain the controller of the Xxxxxxxx Xxxxx Data for
purposes of all applicable laws relating to data privacy, trans-border data flow
and data protection (collectively, the “Privacy Laws”), and nothing in
this Agreement will restrict or limit in any way Xxxxxxxx Xxxxx’x rights or
obligations as owner and/or controller of the Xxxxxxxx Xxxxx Data for such
purposes. The Parties also acknowledge and agree that EDS may have certain
responsibilities prescribed by applicable Privacy Laws as a processor of the
Xxxxxxxx Xxxxx Data, and EDS hereby acknowledges such responsibilities to the
extent required thereby for processors of data and agrees that such
responsibilities will be considered as a part of the Services to be provided by
EDS under this Agreement; provided, however, that in the event
that Privacy Laws to which the activities contemplated by this Agreement are
subject are modified, EDS will work with Xxxxxxxx Xxxxx in an effort to continue
to comply with such Privacy Laws, as so modified, but to the extent that such
modifications expand the scope of the activities previously undertaken by EDS
pursuant to this Section 8.3, EDS will, at Xxxxxxxx Xxxxx’x
reasonable request, provide such additional activities as Additional Services. |
|
(a) |
Scope of Obligation. Except as otherwise
expressly provided in this Agreement, EDS and Xxxxxxxx Xxxxx each agrees that
(i) all information communicated to it by the other and identified as
confidential, whether before or after the Effective Date, (ii) all information
identified as confidential to which it has access in connection with the
Services, whether before or after the Effective Date, and (iii) this Agreement
and the Parties’ rights and obligations hereunder, will be and will be
deemed to have been received in confidence and will be used only for purposes of
this Agreement, and each of EDS and Xxxxxxxx Xxxxx agrees to use the same means
as it uses to protect its own confidential information, but in no event less
than reasonable means, to prevent the disclosure and to protect the
confidentiality thereof. No such information will be disclosed by the recipient
Party without the prior written consent of the other Party; provided,
however, that each Party may disclose this Agreement and the other
Party’s confidential information to those of the recipient Party’s
attorneys, auditors, insurers (if applicable), subcontractors and full time
employees who have a need to have access to such information in connection with
their employment (or engagement, if applicable) by the recipient Party, so long
as the recipient Party requires, in the case of its attorneys, auditors and
insurers, that each of them execute a confidentiality agreement containing terms
and conditions no less restrictive than those set forth in this
Section 8.4 and advises, in the case of its subcontractors and
employees, each such subcontractor and employee of the confidentiality
obligations set forth in this Section 8.4. In any event, compliance by
each of the persons referenced in the preceding sentence with the
confidentiality obligations set forth in this Section 8.4 will
remain the responsibility of the Party employing or engaging such persons.
Notwithstanding the foregoing, EDS may disclose this Agreement and other
confidential information to which it has access hereunder to professional
advisers, financial institutions and other third parties in connection with any
transaction entered into to provide financing related to this Agreement or the
obligations of EDS hereunder, so long as each of them execute a confidentiality
agreement containing terms and conditions no less restrictive than those set
forth in this Section 8.4. |
|
(b) |
Exceptions. The foregoing will not prevent
either Party from disclosing information that belongs to such Party or (i) is
already known by the recipient Party without an obligation of confidentiality
other than under this Agreement, (ii) is publicly known or becomes publicly
known through no unauthorized act of the recipient Party, (iii) is rightfully
received from a third party, (iv) is independently developed without use of the
other Party’s confidential information or (v) is disclosed without similar
restrictions to a third party by the Party owning the confidential information.
If confidential information is required to be disclosed pursuant to a
requirement of a governmental authority, such confidential information may be
disclosed pursuant to such requirement so long as the Party required to disclose
the confidential information, to the extent possible, provides the other Party
with timely prior notice of such requirement and coordinates with such other
Party in an effort to limit the nature and scope of such required disclosure;
provided, however, that, in the event of a tax audit, (A) notice
of a disclosure requirement in connection therewith will not be given, and (B)
the Parties will use commercially reasonable efforts to ensure that any
confidential information that is subject to a valid request for delivery of a
copy of such information (including a copy of this Agreement) to the taxing
authority is not subject to further disclosure by it (such as by marking such
information as a trade secret). If confidential information is required to be
disclosed in connection with the conduct of any mediation or arbitration
proceeding carried out pursuant to Article X, such confidential
information may be disclosed pursuant to and in accordance with the approval and
at the direction of the mediator or arbitrator, as the case may be, conducting
such proceeding. Upon written request of the disclosing Party at the expiration
or termination of this Agreement for any reason, all such documented
confidential information (and all copies thereof) of the disclosing Party will
be returned to the disclosing Party or will be destroyed, with written
certification thereof being given to the disclosing Party. The provisions of
this Section 8.4 will survive the expiration or termination of
this Agreement for any reason. |
|
(a) |
General. Employees of Xxxxxxxx Xxxxx and its
auditors who are from time to time designated by Xxxxxxxx Xxxxx and who agree in
writing to the security and confidentiality obligations and procedures
reasonably required by EDS will be provided with reasonable access to any
facility at which the Services are being performed to enable them to conduct
audits of EDS’ performance of the Services and other matters relevant to
this Agreement, including (i) verifying the accuracy of EDS’ charges to
Xxxxxxxx Xxxxx and (ii) verifying that the Services are being provided in
accordance with this Agreement, including any Service Levels. |
|
(b) |
Procedures. Such audits may be conducted once
a year during reasonable business hours; provided, however, that
the Parties may agree to more frequent audits as deemed reasonably necessary.
Xxxxxxxx Xxxxx will provide EDS with prior written notice of an audit. EDS will
cooperate in the audit, will make the information reasonably required to conduct
the audit available on a timely basis and will assist the designated employees
of Xxxxxxxx Xxxxx or its auditors as reasonably necessary. If Xxxxxxxx Xxxxx
requests resources beyond those resources then assigned to the account team
under this Agreement who are able to provide reasonable assistance of a routine
nature in connection with such audit, such resources will be provided as
Additional Services. EDS will retain records that support EDS’ performance
of the Services and other matters relevant to this Agreement in accordance with
EDS’ retention guidelines. Notwithstanding anything to the contrary in this
Agreement, EDS will not be required to provide access to the proprietary data of
EDS or other EDS customers. All information learned or exchanged in connection
with the conduct of an audit, as well as the results of any audit, is
confidential and will be subject to Section 8.4. |
|
(c) |
Results. Following an audit, Xxxxxxxx Xxxxx
will conduct an exit conference with EDS to discuss issues identified in the
audit that pertain to EDS, and Xxxxxxxx Xxxxx will give EDS a copy of any
portion of the audit report pertaining to EDS. The Parties will review each EDS
audit issue and will determine (i) what, if any, actions will be taken in
response to such audit issues, when and by whom and (ii) which Party will be
responsible for the cost of taking the actions necessary to resolve such issues.
Any such determination will be based on the following criteria: (A) who the
owner of the original deficiency is; (B) who has contractual responsibility for
the improvement of internal controls; and (C) who owns the standards against
which the audit is done. EDS will not be responsible for the cost of an audit,
except to the extent the audit expenses are incurred in connection with a
specific audit limited to EDS and the an original material deficiency discovered
in the audit is attributable to EDS, or otherwise agreed to in writing by the
Parties. For the purposes of this Agreement a “material deficiency” is
any discrepancy between charges billed and actual billable charges of greater
than five percent (5%). |
Article IX.
Payments
| 9.1 |
Charges for EDS Services. In consideration for the
performance of the Services, Xxxxxxxx Xxxxx will pay to EDS the charges set
forth in Schedule 9.1, plus any and all Collected Taxes (as defined in
Section 9.4) and other amounts described in this Article IX. EDS
will invoice Xxxxxxxx Xxxxx for such charges on a monthly basis in arrears, with
each invoice setting forth the charges related to the previous month. EDS either
will include on each such invoice, or will xxxx Xxxxxxxx Xxxxx separately for,
the Collected Taxes for which Xxxxxxxx Xxxxx is responsible hereunder. |
| 9.2 |
Out-of-Pocket Expenses. Xxxxxxxx Xxxxx will pay, or
reimburse EDS for, the reasonable out-of-pocket expenses, including travel and
travel-related expenses, incurred by EDS with the prior written consent of
Xxxxxxxx Xxxxx, in connection with EDS’ activities requested by Xxxxxxxx
Xxxxx and not within the general scope of the Services, including any purchases
by EDS on behalf of Xxxxxxxx Xxxxx of additional items of property pursuant to
Section 5.7. EDS will invoice Xxxxxxxx Xxxxx separately for all such
out-of-pocket expenses, which invoice will be sent by EDS to Xxxxxxxx Xxxxx
after EDS incurs such expenses and will contain an itemized listing of the
applicable expenses. |
| 9.3 |
Charges for Additional Services. In consideration
for any agreement by EDS to provide new or additional Services, Xxxxxxxx Xxxxx
will pay to EDS (a) the amounts mutually agreed to in writing by EDS and
Xxxxxxxx Xxxxx for the new or additional Services, and (b) any and all collected
Taxes and (c) the out-of-pocket expenses incurred by EDS (in accordance with
Section 9.2) in connection with the performance by EDS of the new
or additional Services. |
| 9.4 |
Time of Payment; Disputed Amounts. Except as
otherwise expressly provided in this Agreement, any amount due to EDS under this
Agreement and not disputed in good faith by Xxxxxxxx Xxxxx (as provided below)
will be due and payable on the 30th day following receipt by Xxxxxxxx Xxxxx of
the invoice from EDS therefor. All amounts will be payable to EDS by check or by
ACH (for amounts less than $1,000,000) or wire transfer (for amounts of
$1,000,000 or more), in accordance with payment instructions provided by EDS
from time to time, so as in each case to constitute immediately available funds
by 12 noon, Plano, Texas time, on the payment date no matter what the method of
payment. Any amount not paid when due will bear interest until paid at a rate of
interest equal to the lesser of (a) the prime rate established from time to time
by Citibank of New York plus one and one-half percent or (b) the maximum rate of
interest allowed by applicable law. If any portion of an amount due to EDS under
this Agreement is subject to a bona fide dispute between the Parties, Xxxxxxxx
Xxxxx will pay to EDS on the date such amount is due all amounts not disputed in
good faith by Xxxxxxxx Xxxxx. Within 15 days of Xxxxxxxx Xxxxx’x receipt of
the invoice on which a disputed amount appears, Xxxxxxxx Xxxxx will notify EDS
in writing of the specific items in dispute, will describe in detail Xxxxxxxx
Xxxxx’x reason for disputing each such item and will deposit such disputed
amount into an escrow account established in the manner set forth in Section
10.5. Within 10 days of EDS’ receipt of such notice, the Parties will
negotiate in good faith pursuant to the provisions of Article X to reach
settlement on any items that are the subject of such dispute. If Xxxxxxxx Xxxxx
does not notify EDS of any items in dispute within such 15-day period of time,
Xxxxxxxx Xxxxx will be deemed to have approved and accepted such invoice. |
|
(a) |
General. Unless Xxxxxxxx Xxxxx provides EDS with a
valid and applicable exemption certificate, there will be added to any charges
under this Agreement, or there will be separate billing for, and Xxxxxxxx Xxxxx
will bear the cost of and will pay to EDS, or reimburse EDS for, any and all
Collected Taxes arising from or imposed on this Agreement, the transactions
arising hereunder, the charges payable hereunder, the Services or the provision,
license or sale thereof or the Software, equipment, materials, property
(tangible or intangible) or other resources provided hereunder or used in
connection herewith; provided, however, that Xxxxxxxx Xxxxx’x
obligations hereunder with respect to Collected Taxes will not apply to any
income taxes that are based on or measured by EDS’ net income. The Parties
acknowledge and agree that EDS shall accurately and correctly invoice or xxxx
Xxxxxxxx Xxxxx for the Services by separating the taxable and non-taxable
Services in accordance with the SOW, applicable federal and state law, and as
described on the Taxing Matrix attached hereto as Schedule 9.5(a). For
purposes of this Agreement, the term “Collected Taxes” means any
present or future taxes, assessments, duties, permits, tariffs, fees and other
charges of any kind, however designated, assessed, charged or levied now or
hereafter, including without limitation sales, use, state, local, provincial,
property, gross receipts, excise, transaction, goods and services, value-added
or similar taxes, other taxes or amounts in whatever nature or in lieu thereof,
and all fines, penalties, interest, additions to taxes (penalty in nature) or
similar liabilities imposed in connection therewith. Subject to Section
12.1(f), Xxxxxxxx Xxxxx will indemnify and defend EDS from any and all
Collected Taxes, including without limitation any additions to tax, penalties,
interest, fines, fees, reasonable attorneys’ and accountants’ fees and
other expenses arising out of, under or in connection with any claim (i) that
any Collected Taxes are not paid at the time or in the manner required by
applicable law or (ii) for any other breach by Xxxxxxxx Xxxxx of this Section
9.5. Notwithstanding the foregoing, to the extent that EDS negligently,
intentionally, or otherwise incorrectly invoices or bills Xxxxxxxx Xxxxx for
Collected Taxes (for any reason other than Xxxxxxxx Xxxxx’x explicit
direction to use such an invoice or billing method) EDS will indemnify and
defend Xxxxxxxx Xxxxx from any and all penalties, fines, fees, reasonable
attorney’s and accountant’s fees or expenses arising from said
incorrect billing or invoicing. |
|
(b) |
Reports and Returns. All reports and returns
required to be filed with regard to Collected Taxes will be prepared and timely
filed by the Party required by the applicable taxing authority to file such
reports and returns. If EDS takes a position on any form, in any return, on
audit or otherwise on behalf of Xxxxxxxx Xxxxx, or at Xxxxxxxx Xxxxx’x
request, Xxxxxxxx Xxxxx will bear the cost of and pay EDS, or reimburse EDS for
the payment of, any and all expenses and liabilities, including without
limitation Collected Taxes, costs, reasonable attorneys’ and
accountants’ fees and other expenses or disbursements arising out of,
attributable to or in connection with any audit or contest of such Collected
Taxes, or any claim or assessment claimed by any taxing authority. |
|
(c) |
Minimization of Taxes. The Parties will reasonably
cooperate in the minimization of taxes to the extent legally permissible. The
Parties agree that, for state and local sales and use tax purposes, the amounts
payable under this Agreement will be audited, where permissible, by the
applicable taxing authority as part of EDS’ state and local sales and use
tax audits, but Xxxxxxxx Xxxxx will pay, or reimburse EDS for, any and all
Collected Taxes assessed under the audits. |
|
(d) |
Tax Audits. If any claim is made or liability
asserted by notice to or commencement of proceedings against EDS (or any of its
affiliates) for any Collected Taxes as to which Xxxxxxxx Xxxxx has a payment
obligation pursuant to this Section 9.5, EDS will notify Xxxxxxxx Xxxxx
of such claim or liability in writing and will furnish Xxxxxxxx Xxxxx with
copies of the claim or notice of liability and all other applicable writings
received from the applicable taxing authority; provided, however,
that EDS’ failure to so notify or furnish such copies to Xxxxxxxx Xxxxx
will not operate to relieve Xxxxxxxx Xxxxx of its obligation to indemnify EDS
under this Agreement. Within 15 days of Xxxxxxxx Xxxxx’x receipt of notice
from EDS of such claim or liability, but not later than three business days
before the date required to timely file any documents with the applicable taxing
authority, Xxxxxxxx Xxxxx may request that EDS contest such claim or liability.
If (i) requested by Xxxxxxxx Xxxxx, (ii) a good faith, reasonable basis (as
defined in Section 6662(d)(2)(B)(ii)(II) of the Internal Revenue Code of 1986,
as amended) exists for such contest and (iii) EDS determines that such contest
will not result in any adverse impact to EDS (or any of its affiliates), EDS
will, in good faith and at Xxxxxxxx Xxxxx’x sole cost and expense
(including reimbursement by Xxxxxxxx Xxxxx to EDS of all reasonable costs and
expenses incurred, including reasonable attorneys’ and accountants’
fees), contest the claim or liability; provided, however, that EDS
will determine, in its sole discretion, the nature of all actions to be taken to
contest such claim or liability, including (A) whether any action to contest
such claim or liability will be initially by way of judicial or administrative
proceedings, or both, (B) whether any such claim or liability will be contested
by resisting payment therefor by paying the same and seeking a refund thereof
and (C) if EDS undertakes judicial action with respect to such claim or
liability, the court or other judicial body before which such action will be
commenced. EDS will have full control over any contest pursuant to this
Section 9.5(d); provided, however, that Xxxxxxxx Xxxxx will
have the right to participate in any such proceedings or hearings, including the
right, to the extent permitted by law and only for discussions relating to
claims or liabilities which EDS is contesting thereunder, to attend governmental
or judicial conferences concerning such claims or liabilities; and provided
further and subject to the other provisions of this Section 9.5(d),
EDS will not discriminate against any such claim or liability as compared with
other proposed claims involving potential tax liability of EDS and will not,
without Xxxxxxxx Xxxxx’x consent, settle any such claim or liability for
which Xxxxxxxx Xxxxx would be required to indemnify EDS hereunder. EDS will
advise Xxxxxxxx Xxxxx of all relevant action taken or proposed to be taken by
the applicable taxing authority and of all relevant action proposed to be taken
by EDS and will permit Xxxxxxxx Xxxxx, upon Xxxxxxxx Xxxxx’x request,
reasonable opportunities to review the content of documentation, petitions,
protests, memoranda of fact and law, briefs and stipulations of fact, each
relating exclusively to a claim or liability for which Xxxxxxxx Xxxxx would be
required to indemnify EDS hereunder; provided, however, that
EDS’ failure to so advise Xxxxxxxx Xxxxx or to so permit Xxxxxxxx Xxxxx to
review such documentation as provided above will not operate to relieve Xxxxxxxx
Xxxxx of any obligation to indemnify EDS hereunder. Notwithstanding the
foregoing, at any time, whether before or after commencing any contest or action
under this Section 9.5(d), EDS, in its sole discretion, may decline to
pursue such contest or action with respect to all or any portion of a claim or
liability, or EDS may pursue such contest or action without notifying Xxxxxxxx
Xxxxx in compliance with this Section 9.5(d); provided,
however, that in such instance, Xxxxxxxx Xxxxx will be relieved of its
obligation to indemnify EDS with respect to the claim or liability or such
portion thereof, as the case may be. The provisions of this Section 9.5
will survive the expiration or termination of this Agreement for any reason. |
| 9.5 |
Shared Cost Savings. In the
event either party proposes a change to the way Services are provided hereunder
or requests new services and such change or new services results in a readily
quantifiable out-of-pocket savings in cost to either EDS or Xxxxxxxx Xxxxx, the
Parties agree that upon the realization of any such savings, such savings shall
be allocated between the Parties as follows: |
|
(a) |
Xxxxxxxx Xxxxx Costs. If Xxxxxxxx Xxxxx
proposes the change and pays for the entire cost of such change or new services,
all savings associated therewith shall be allocated to Xxxxxxxx Xxxxx. If EDS
proposes the change and Xxxxxxxx Xxxxx pays for the entire cost of such change
or new services, then EDS shall be allocated 25% of the savings associates
therewith. |
|
(b) |
Shared Costs. If the cost of such change or
new services is shared by Xxxxxxxx Xxxxx and EDS, the savings associated
therewith shall be allocated between the Parties in accordance with the
percentages mutually agreed upon by the Parties at the time such change or new
services were agreed upon by the Parties. |
| 9.6 |
Cost and Quality Benchmarking. |
|
(a) |
Benchmarking. At Xxxxxxxx Xxxxx’x
request, the Parties will from time to time during the Term measure the quality
and cost-effectiveness of the Services through the use of independent third
party benchmarking services (each, a “Benchmark”). Comparisons will be
to determine whether, in the aggregate, the Services being delivered are
comparable to similarly bundled price and service offerings of other
best-in-class information technology service providers, taking into account
financial and operational risks, volume, term and any minimum commitments. The
party used to perform the benchmarking services (the “Benchmarker”)
will be reasonably acceptable to both Parties, and will exclude any entity that
is a competitor of either party, or that would be conflicted by its status as a
corporate auditor of either Party. Agreement upon a Benchmarker shall be
contingent upon such Benchmarker’s agreement to such non-disclosure
obligations as may be reasonably required by either Party. The fees and services
charged by the Benchmarker shall be borne by Xxxxxxxx Xxxxx. EDS shall fully
cooperate with such efforts, investigate unfavorable variances, and take
corrective action as necessary. |
|
(b) |
Benchmarking Schedule. At Xxxxxxxx
Xxxxx’x s request, the initial Benchmark will be performed prior to the
second anniversary of the Effective Date. Thereafter, Benchmarks will be
performed on a mutually agreed upon schedule, but in no event more than every
two years. |
|
(c) |
Corrective Action for Quality. If the
Benchmark shows that any individual Service quality is not in the upper quartile
of the group used in the Benchmark, EDS shall take such corrective action as
necessary to promptly bring the particular Service into the upper quartile
within 30 days from receipt of the Benchmark or such other time period as may
otherwise be mutually agreed upon by the Parties. If as a result of
technological changes, the cost of EDS performing Services within the upper
quartile of the Benchmark would exceed the then current costs of providing such
services by more than ten percent (10%), then the costs of such corrective
action shall be the subject of good faith negotiations between the Parties. |
|
(d) |
Corrective Action for Charges. If the
Benchmark shows that the aggregate charges paid by Xxxxxxxx Xxxxx to EDS for the
Services are not in the third or lower quartile of the group used in the
Benchmark (i.e., lower in cost than 50% of the companies in the group), EDS
shall downwardly adjust the charges herein in order to bring the aggregate
charges into the third quartile. In the event EDS fails to take such corrective
action (which failure shall not constitute a breach of this Agreement), an
Executive Vice President of Xxxxxxxx Xxxxx Co. (or equivalent) and a Client
Executive of EDS (or equivalent) (the “Executives”) shall meet and
attempt in good faith, to resolve any dispute between the Parties relative to
this Section 9.6(d). If the Executives are unable to resolve the dispute,
then Xxxxxxxx Xxxxx may terminate this Agreement pursuant to Section
11.4. |
Article X.
Dispute Escalation, Mediation and Arbitration
| 10.1 |
Dispute Escalation. In the event of any dispute,
controversy or claim of any kind or nature arising under or in connection with
this Agreement (including disputes as to the creation, validity, interpretation,
breach or termination of this Agreement) (a “Dispute”), then upon the
written request of either Party, each of the Parties will appoint a designated
senior business executive (other than the EDS Account Executive or the Xxxxxxxx
Xxxxx Representative) whose task it will be to meet for the purpose of
endeavoring to resolve the Dispute. The designated executives will meet as often
as the Parties reasonably deem necessary in order to gather and furnish to the
other all information with respect to the matter in issue which the Parties
believe to be appropriate and germane in connection with its resolution. Such
executives will discuss the Dispute and will negotiate in good faith in an
effort to resolve the Dispute without the necessity of any formal proceeding
relating thereto. The specific format for such discussions will be left to the
discretion of the designated executives but may include the preparation of
agreed upon statements of fact or written statements of position furnished to
the other Party. No formal proceedings for the resolution of the Dispute under
Section 10.2 or 10.3 may be commenced until the earlier to occur
of (a) a good faith mutual conclusion by the designated executives that amicable
resolution through continued negotiation of the matter in issue does not appear
likely or (b) the 30th day after the initial request to negotiate the Dispute. |
| 10.2 |
Mediation. Any Dispute that the Parties are unable
to resolve through informal discussions or negotiations pursuant to Section
10.1 will be submitted to non-binding mediation, which will be held in
Plano, Texas if initiated by Xxxxxxxx Xxxxx and in Salt Lake City, Utah if
initiated by EDS. The Parties will mutually determine who the mediator will be
from a list of mediators obtained from the American Arbitration Association
office located in the city in which the proceeding will take place, determined
as set forth above (the “AAA”). If the Parties are unable to agree on
the mediator, the AAA will select the mediator. Each Party will bear its own
costs and expenses with respect to the mediation, including one-half of the fees
and expenses of the mediator. |
| 10.3 |
Arbitration. Any Dispute that the Parties are unable
to resolve through mediation pursuant to Section 10.2 will be submitted
to arbitration in accordance with the following procedures: |
|
(a) |
Demand for Arbitration; Location. Either
Party may demand arbitration by giving the other Party written notice to such
effect, which notice will describe, in reasonable detail, the facts and legal
grounds forming the basis for the filing Party’s request for relief and
will include a statement of the total amount of damages claimed, if any, and any
other remedy sought by that Party. The arbitration will be held before one
neutral arbitrator in Plano, Texas if the proceedings are initiated by Xxxxxxxx
Xxxxx and in Salt Lake City, Utah if the proceedings are initiated by EDS. |
|
(b) |
Identification of Arbitrator. Within 30 days
after the other Party’s receipt of such demand, the Parties will mutually
determine who the arbitrator will be. If the Parties are unable to agree on the
arbitrator within that time period, the AAA will select the arbitrator. In any
event, the arbitrator will have a background in, and knowledge of, the
information technology services industry and will be an appropriate person based
on the nature of the Dispute. If a person with such industry experience is not
available, the arbitrator will be chosen from the large and complex case panel
or, if an appropriate person is not available from such panel, the retired
federal judges pool. |
|
(c) |
Conduct of Arbitration. The Commercial
Arbitration Rules of the AAA will govern the arbitration, except as expressly
provided in this Section 10.3. However, the arbitration will be
administered by any organization mutually agreed to in writing by the Parties.
If the Parties are unable to agree on the organization to administer the
arbitration, it will be administered by the AAA under its procedures for large
and complex cases. |
|
(d) |
Scope of Discovery. Discovery will be limited
to the request for and production of documents, depositions and interrogatories.
Interrogatories will be allowed only as follows: a Party may request the other
Party to identify by name, last known address and telephone number (i) all
persons having knowledge of facts relevant to the Dispute and a brief
description of that person’s knowledge, (ii) any experts who may be called
as an expert witness, the subject matter about which the expert is expected to
testify, the mental impressions and opinions held by the expert and the facts
known by the expert (regardless of when the factual information was acquired)
which relate to or form the basis for the mental impressions and opinions held
by the expert and (iii) any experts who have been used for consultation,
but who are not expected to be called as an expert witness, if such consulting
expert’s opinions or impressions have been reviewed by an expert witness.
All discovery will be guided by the Federal Rules of Civil Procedure. All issues
concerning discovery upon which the Parties cannot agree will be submitted to
the arbitrator for determination. |
|
(e) |
Authority of Arbitrator. The arbitrator will
determine the rights and obligations of the Parties according to the laws of the
State of Utah. The arbitrator will not have authority to award damages in excess
of the amount or other than the types allowed by Section 12.2 and may
not, in any event, make any ruling, finding or award that does not conform to
the terms and conditions of this Agreement. |
|
(f) |
Joinder of Parties. Each of EDS and Xxxxxxxx
Xxxxx agree that it will use commercially reasonable efforts to join (and will
allow the other Party to join) any third party that the Parties have agreed is
indispensable to the arbitration. If any such third party does not agree to be
joined, the arbitration will proceed nonetheless. |
|
(g) |
Award. The decision of, and award rendered
by, the arbitrator will be final and binding on the Parties. Upon the
request of a Party, the arbitrator’s award will include written findings of
fact and conclusions of law. Judgment on the award may be entered in and
enforced by any court of competent jurisdiction. Each Party will bear its own
costs and expenses (including filing fees) with respect to the arbitration,
including one-half of the fees and expenses of the arbitrator. |
| 10.4 |
Exclusive Remedy. Other than those matters involving
injunctive or other extraordinary relief or any action necessary to enforce the
award of the arbitrator, the Parties agree that the provisions of this
Article X are a complete defense to any suit, action or other proceeding
instituted in any court or before any administrative tribunal with respect to
any Dispute or the provision of the Services by EDS. Nothing in this Article
X prevents the Parties from exercising their rights to terminate this
Agreement in accordance with Article XI. |
| 10.5 |
Continued Performance; Escrow Account. Unless (a)
EDS has commenced a proceeding or has presented a claim pursuant to this
Article X for nonpayment by Xxxxxxxx Xxxxx of amounts due under this
Agreement, and Xxxxxxxx Xxxxx does not promptly pay all amounts in dispute into
an escrow account as required below and does not otherwise continue to make
payment to EDS in accordance with this Agreement of all amounts not required to
be so escrowed, or (b) this Agreement has been terminated in accordance with
Article XI, EDS will continue to provide the Services during any dispute
resolution proceedings (whether informal or formal) commenced pursuant to this
Article X and Xxxxxxxx Xxxxx will continue to perform its obligations
(including the making of payments) in accordance with this Agreement. Up to the
lesser of (i) the maximum amount in dispute and (ii) the extent of EDS’
liability under Section 12.2(a) as of the date of escrow (the
“Escrow Cap”), any disputed payment will be paid pending resolution of
the Dispute into an escrow account that is structured by agreement of the
Parties or, if agreement cannot be reached, as directed by the mediator or
arbitrator, as the case may be, engaged in accordance with this
Article X. Any such escrow account will provide for the payment of
interest on the amounts deposited therein, and the Parties (if the Dispute is
resolved informally) or the mediator or arbitrator, as the case may be (if the
Dispute is resolved formally), will make the determination regarding
distribution of such deposited amounts plus interest. In addition to the escrow,
Xxxxxxxx Xxxxx will continue to make payment to EDS of all amounts not in
dispute (and all amounts in dispute that are in excess of the Escrow Cap) in
accordance with this Agreement. If Xxxxxxxx Xxxxx fails to escrow disputed
payments up to the Escrow Cap or to otherwise continue to make payment to EDS in
accordance with this Agreement of all amounts not required to be so escrowed,
EDS may apply to any court of competent jurisdiction to seek injunctive relief
for such failure and will have the right to terminate this Agreement in
accordance with Section 11.2. Likewise, if EDS fails to provide Services
in accordance with this Section 10.5, Xxxxxxxx Xxxxx may apply to any court of
competent jurisdiction to seek injunctive relief for such failure.
|
Article XI.
Termination
| 11.1 |
Dispute Escalation. If either Party materially
defaults in the performance of any of its duties or obligations under this
Agreement (except for a default in payments to EDS hereunder, which will be
governed by Section 11.2), which default is not substantially cured
within 60 days after written notice is given to the defaulting Party specifying
such default or, with respect to those defaults that cannot reasonably be cured
within 60 days, should the defaulting Party fail to proceed within 60 days
to commence curing the default and thereafter to proceed with reasonable
diligence to substantially cure the default, the Party not in default may, by
giving written notice thereof to the defaulting Party, terminate this Agreement
as of the date of receipt by the defaulting Party of such notice or as of a
future date specified in such notice of termination. In the event of a
termination for cause, the sole rights and obligations of the respective Parties
shall be those set forth in Section 11.7. |
| 11.2 |
Termination for Nonpayment. If Xxxxxxxx Xxxxx
defaults in the payment when due of any amount due to EDS pursuant to this
Agreement and does not cure such default within 30 days after being given
written notice of such default or otherwise does not comply with Section
10.5, EDS may, by giving written notice thereof to Xxxxxxxx Xxxxx, terminate
this Agreement as of the date of receipt by Xxxxxxxx Xxxxx of such notice or as
of a future date specified in such notice of termination. |
| 11.3 |
Termination for Bankruptcy and Related Events.
Subject to Xxxxx 00, Xxxxxx Xxxxxx Code, if either Party becomes or is declared
insolvent or bankrupt, is the subject of any proceedings relating to its
liquidation, insolvency or for the appointment of a receiver or similar officer
for it, makes an assignment for the benefit of all or substantially all of its
creditors or enters into an agreement for the composition, extension or
readjustment of all or substantially all of its obligations, then the other
Party may, by giving written notice thereof to such Party, terminate this
Agreement as of a date specified in such notice of termination. |
| 11.4 |
Termination for Convenience. Subject to the
other provisions of this Agreement, Xxxxxxxx Xxxxx may terminate this Agreement
at any time upon at least 6 months prior written notice to EDS; provided
however, that if Xxxxxxxx Xxxxx terminates this Agreement pursuant to this
Section 11.4, Xxxxxxxx Xxxxx shall pay EDS, as EDS ‘s sole remedy
for termination, upon giving such notice the applicable termination fees set
forth on Schedule 11.4 Section (A) The foregoing notwithstanding, (i) in
the event Xxxxxxxx Xxxxx terminates this Agreement for convenience due to
EDS’s failure to take the corrective action required by Section 9.6(d)
within the time period set forth therein, then the termination fees shall be
those set forth in Schedule 11.4 Section (B); and (ii) in the
event that Xxxxxxxx Xxxxx terminates this Agreement for convenience within 12
months of a change of control (other than through one or more public offerings
of Xxxxxxxx Xxxxx securities) where such control is acquired, directly or
indirectly, in a single transaction or series of related transactions at any
time during the Term (except that such change of control shall be measured
during any 6 month period only in respect of any period when Xxxxxxxx Xxxxx
shall be publicly owned), or all or substantially all of the assets of Xxxxxxxx
Xxxxx are acquired by one or more persons, or Xxxxxxxx Xxxxx is merged or
consolidated with or into any other person to form a new entity, then the
termination fees shall be those set forth in Schedule 11.4 Section (C). |
| 11.5 |
Effect of
Expiration or Termination. |
|
(a) |
Wind-Down. Upon expiration or termination of this
Agreement for any reason, EDS will cease to perform the Services, and Xxxxxxxx
Xxxxx will pay to EDS all amounts due to EDS for all Services provided and
expenses incurred (including those expenses that, instead of being concurrently
billed, have been included in future payments to be made by Xxxxxxxx Xxxxx)
through the effective date of such expiration or termination. |
|
(b) |
Transition. In connection with the expiration
of this Agreement on the Expiration Date or with the termination of this
Agreement by Xxxxxxxx Xxxxx pursuant to this Article XI, EDS will comply
with Xxxxxxxx Xxxxx’x reasonable directions to cause the orderly transition
and migration from EDS to Xxxxxxxx Xxxxx (or a third party services provider
undertaking, on behalf of Xxxxxxxx Xxxxx, to provide the Services (the
“Third Party Provider”)) of all Services then being performed by EDS
(the “Termination Transition”). The Termination Transition will be
provided for a reasonable period of time which in no event will exceed 12
months. Xxxxxxxx Xxxxx will cooperate in good faith with EDS in connection with
EDS’ obligations under this Section 11.5(b) and will perform its
obligations under the Transition Plan. If the Termination Transition extends
beyond the Expiration Date or effective date of termination of this Agreement by
Xxxxxxxx Xxxxx, the provisions of this Agreement will remain in effect for the
duration of the Termination Transition and will apply to all transition
assistance services provided by EDS during such period (subject to the last two
sentences of Section 11.5(d). EDS will perform the following obligations
(and such other obligations as may be contained in the Transition Plan) at
Xxxxxxxx Xxxxx’x expense, unless otherwise stated below or in Schedule
11.5. Xxxxxxxx Xxxxx acknowledges and agrees that, as indicated above in
this Section 11.5(b), EDS will have no obligation to provide any
form of Termination Transition if EDS terminates this Agreement pursuant to this
Article XI. |
| |
|
(i) |
Transition Plan. EDS and Xxxxxxxx Xxxxx will work
together to develop a transition plan (the “Transition Plan”) setting
forth the respective tasks to be accomplished by each Party in connection with
the Termination Transition and a schedule pursuant to which such tasks are to be
completed. |
| |
|
(ii) |
Specifications. EDS will, upon Xxxxxxxx Xxxxx’x
request, provide Xxxxxxxx Xxxxx with reasonably detailed specifications for the
hardware and software needed by Xxxxxxxx Xxxxx (or the Third Party Provider) to
properly provide the Services then being performed by EDS. |
| |
|
(iii) |
Acquisition of Equipment. Xxxxxxxx Xxxxx will
have the option to purchase from EDS at its fair market value any equipment
owned by EDS and to assume the leases (provided such leases are assumable) for
any equipment leased by EDS, in each case only to the extent that such equipment
is dedicated solely to providing the Services to Xxxxxxxx Xxxxx as of the
Expiration Date or the effective date of termination, whichever is applicable.
Such equipment will be provided on an “AS IS, WHERE IS” basis. |
| |
|
(iv) |
Licensed Programs. The parties will execute a
mutually acceptable license agreement, and EDS will deliver a copy of the
Licensed Programs and existing documentation to Xxxxxxxx Xxxxx and will install
such copy on the equipment of Xxxxxxxx Xxxxx (or the Third Party Provider). |
| |
|
(v) |
Vendor Software. EDS will reasonably assist Xxxxxxxx
Xxxxx in Xxxxxxxx Xxxxx’x acquisition of any necessary rights to access any
EDS-Vendor Software and existing documentation then being used by EDS in
performing the Services. |
| |
|
(vi) |
Training. EDS will provide appropriate training for
the employees of Xxxxxxxx Xxxxx (or the Third Party Provider) who will be
assuming responsibility following the Termination Transition for operation of
the software then being used by EDS in performing the Services. |
| |
|
(vii) |
Hiring of Employees. Notwithstanding Section
2.4, Xxxxxxxx Xxxxx may offer employment to any Account Team member who is
then assigned to the Xxxxxxxx Xxxxx account and is not providing Services from a
leveraged support center.. |
|
(c) |
Disclosure of Information. Notwithstanding anything
to the contrary in this Agreement, EDS will not be required to disclose any of
its proprietary information, whether in the nature of a trade secret, software
or otherwise, to the Third Party Provider except to the extent that Xxxxxxxx
Xxxxx is entitled to such information under this Agreement. Prior to providing
any termination assistance to the Third Party Provider, Xxxxxxxx Xxxxx will
cause the Third Party Provider to provide EDS with written assurances, in form
and substance reasonably satisfactory to EDS, that the Third Party Provider
(i) will maintain at all times the confidentiality of any EDS proprietary
information disclosed or provided to, or learned by, the Third Party Provider in
connection therewith and (ii) will use such information exclusively for the
purposes for which Xxxxxxxx Xxxxx is authorized to use such information pursuant
to this Agreement. |
|
(d) |
Charges. For so long as this Agreement remains in
effect and during the Termination Transition but subject to the last two
sentences of this Section 11.5(d), Xxxxxxxx Xxxxx will pay to EDS the
charges set forth in this Agreement. If the Termination Transition provided by
EDS under this Section 11.5 requires personnel or other resources in
excess of those resources then being provided by EDS under this Agreement,
Xxxxxxxx Xxxxx will pay EDS for such additional resources at the applicable
resource rates set forth in Schedule 9.1 on such periodic basis as the
Parties agree in writing. Notwithstanding anything to the contrary in this
Agreement, all charges to be paid by Xxxxxxxx Xxxxx to EDS during the
Termination Transition (including those set forth in Schedules 9.1 and
11.4) will be paid on a monthly basis in advance. |
|
(e) |
Xxxxxxxx Xxxxx’x Right to Extend the Termination
Date. Except in the case of a valid termination for cause by
EDS under Section 11.2 (unless Xxxxxxxx Xxxxx has paid EDS all amounts
then due and payable in respect of the Services and has agreed to pay in advance
for the future Services to be provided), Xxxxxxxx Xxxxx may elect, upon 90
days’ prior written notice to EDS, to extend the Termination Date one or
more times, in its sole and absolute discretion, provided that the total of all
such extensions shall not exceed 12 months following the original Termination
Date without EDS ‘s prior written consent.
|
Article XII.
Indemnities and Liability
|
(a) |
Claims Relating to Space, Taxes and Employees.
Subject to Sections 12.1(f) and 12.2, EDS and Xxxxxxxx Xxxxx each
agrees to indemnify and defend the other Party from any and all claims, actions,
damages, liabilities, costs and expenses, including reasonable attorneys’
fees and expenses (collectively, “Losses”), arising out of, under or
in connection with (i) any claim for rent or utilities at any location where the
indemnitor is financially responsible under this Agreement for such rent or
utilities, (ii) any claim for wages, benefits, third party fees, taxes,
assessments, duties, permits or other charges of any nature for which the
indemnitor is financially responsible under this Agreement, as well as
penalties, interest, fees or other expenses incurred by the indemnitor as a
result of such charges not being paid at the time or in the manner required by
applicable law, (iii) an act or omission, or misrepresentation of fact or
information upon which the indemnitee reasonably relied, which resulted in any
erroneous payment from, or any defect in the administration or operation of, any
employee benefit plan or employee benefit program maintained by the indemnitee,
or which resulted in any fine, penalty or correction imposed, assessed or
required by a governmental agency or which is reasonably required by the
indemnitee to avoid a fine, penalty or corrective action or (iv) an act or
omission of the indemnitor in its capacity as an employer of an Employee Offeree
or a Transitioned Employee and arising out of or relating to (A) federal, state
or other laws or regulations for the protection of persons who are members of a
protected class or category of persons, (B) sexual discrimination or harassment,
(C) accrued employee benefits not expressly assumed by the indemnitee and (D)
any other aspect of the employment relationship or its termination (including
claims for breach of an express or implied contract of employment) and which,
with respect to each of clauses (A) through (D), arose when the person
asserting the claim, demand, charge, actions, cause of action or other
proceeding was or purported to be an employee of the indemnitor. Xxxxxxxx Xxxxx
acknowledges and agrees that its employee indemnity obligation set forth above
includes Losses for severance benefits and any and all claims arising prior to
and after the date on which any Transitioned Employee accepts an EDS offer of
employment. |
|
(b) |
Claims Relating to Personal Injury and Property Damage.
|
| |
|
(i) |
General. EDS and Xxxxxxxx Xxxxx each will be
responsible for Losses to their respective tangible personal or real property
(whether owned or leased), and each Party agrees to look only to its own
insuring arrangements (if any) with respect to such Losses. EDS and Xxxxxxxx
Xxxxx each will be responsible for Losses for the death of or personal injury to
any person (including any employee of either Party) and Losses for damages to
any third party’s tangible personal or real property (whether owned or
leased), in accordance with the law of the jurisdiction in which such Loss is
alleged to have occurred. Subject to Sections 12.1(f) and 12.2,
each Party will indemnify and defend the other Party from any and all Losses
arising out of, under or in connection with claims for which the indemnitor is
responsible under the preceding sentence. |
| |
|
(ii) |
Waiver of Subrogation. EDS and Xxxxxxxx Xxxxx waive
all rights to recover against each other for any Loss to their respective
tangible personal property (whether owned or leased) from any cause covered by
insurance maintained by each of them, including their respective deductibles or
self-insured retentions. EDS and Xxxxxxxx Xxxxx will cause their respective
insurers to issue appropriate waivers of subrogation rights endorsements to all
property insurance policies maintained by each Party. Each Party will give the
other written notice if a waiver of subrogation is unobtainable or obtainable
only at additional expense. If the Party receiving such notice agrees to
reimburse the other Party for such additional expense, the other Party will
obtain such waiver of subrogation. If a waiver is unobtainable or if a Party
elects not to pay the additional expense of a waiver, then neither Party nor
their insurers will waive such subrogation rights. |
| |
|
(i) |
General. Subject to Sections 12.1(f) and
12.2 and the limitations set forth below in this Section 12.1(c),
EDS and Xxxxxxxx Xxxxx each agrees to defend the other Party against any third
party action to the extent that such action is based upon a claim that the
software (other than third party software) or confidential information provided
by the indemnitor, or any part thereof, (i) infringes a copyright perfected
under United States statute, (ii) infringes a patent granted under United States
law or (iii) constitutes an unlawful disclosure, use or misappropriation of
another party’s trade secret. The indemnitor will bear the expense of such
defense and pay any Losses that are attributable to such claim finally awarded
by a court of competent jurisdiction. |
| |
|
(ii) |
Exclusions. Neither EDS nor Xxxxxxxx Xxxxx will be
liable to the other for claims of indirect or contributory infringement. The
indemnitor will have no liability to the indemnitee hereunder if (A) the claim
of infringement is based upon the use of software provided by the indemnitor
hereunder in connection or in combination with equipment, devices or software
not supplied by the indemnitor or used in a manner for which the software was
not designed, (B) the indemnitee modifies any software provided by the
indemnitor hereunder and such infringement would not have occurred but for such
modification, or uses the software in the practice of a patented process and
there would be no infringement in the absence of such practice, or (C) the claim
of infringement arises out of the indemnitor’s compliance with
specifications provided by the indemnitee and such infringement would not have
occurred but for such compliance. |
| |
|
(iii) |
Additional Remedy. If software or confidential
information becomes the subject of a claim under this Section 12.1(c), or
in the indemnitor’s opinion is likely to become the subject of such a
claim, then, in addition to defending the claim and paying any damages and
attorneys’ fees as required above in this Section 12.1(c),
the indemnitor may, at its option and in its sole discretion, (A) replace
or modify the software or confidential information to make it noninfringing or
cure any claimed misuse of another’s trade secret or (B) procure for the
indemnitee the right to continue using the software or confidential information
pursuant to this Agreement. Any costs associated with implementing either of the
above alternatives will be borne by the indemnitor but will be subject to
Section 12.2. If neither alternative is pursued by, or (if pursued)
available to, the indemnitor, (x) the indemnitee will return such software or
confidential information to the indemnitor and (y) if requested by the
indemnitee in good faith, the Parties will negotiate, pursuant to Article
X but subject to Section 12.2, to reach a written agreement on what,
if any, monetary damages (in addition to the indemnitor’s obligation to
defend the claim and pay any damages and attorneys’ fees as required above
in this Section 12.1(c)) are reasonably owed by the indemnitor to the
indemnitee as a result of the indemnitee no longer having use of such software
or confidential information. The payment of any such monetary damages will be
the indemnitee’s sole and exclusive remedy for the inability of the
indemnitor to implement either of the above alternatives. |
|
(d) |
Claims Relating to Internet Usage.
|
| |
|
(i) |
Xxxxxxxx Xxxxx warrants that the publication of any material delivered by or
through it hereunder will not violate the copyright laws of the United States or
any other jurisdiction, unlawfully infringe or interfere in any way with the
literary property or rights of another or contain libelous or indecent matter.
Subject to Sections 12.1(f) and 12.2, Xxxxxxxx Xxxxx will
indemnify and defend EDS from any and all Losses, including those associated
with claims for indirect or contributory infringement, arising out of, under or
in connection with any claims relating to (i) content, whether of an editorial,
advertising or other nature, (ii) the provision, use, alteration or distribution
thereof, the accessibility thereto or the exchange of information over the
Internet in connection therewith, including copyright infringement, libel,
indecency, false light, misrepresentation, invasion of privacy or image or
personality rights, (iii) statements or other materials made or made available
by readers of the content or by persons to whom the content is linked at the
request of Xxxxxxxx Xxxxx or (iv) the conduct of Xxxxxxxx Xxxxx’x business
using the Internet. |
| |
|
(ii) |
EDS warrants that, except as to materials covered by the terms of Section
12.1(d)(1) above, the publication of any material by EDS in performing Services
hereunder will not violate the copyright laws of the United States or any other
jurisdiction, unlawfully infringe or interfere in any way with the literary
property or rights of another or contain libelous or indecent matter. Subject to
Sections 12.1(f) and 12.2, EDS will indemnify and defend Xxxxxxxx
Xxxxx from any and all Losses, including those associated with claims for
indirect or contributory infringement, arising out of, under or in connection
with any claims relating to (i) content, whether of an editorial, advertising or
other nature, (ii) the provision, use, alteration or distribution thereof, the
accessibility thereto or the exchange of information over the Internet in
connection therewith, including copyright infringement, libel, indecency, false
light, misrepresentation, invasion of privacy or image or personality rights,
(iii) statements or other materials made or made available by readers of the
content or by persons to whom the content is linked at the request of EDS or
(iv) the conduct of EDS’ business using the Internet. |
|
(e) |
Third Party Indemnification of EDS. Without limiting
EDS’ liability to Xxxxxxxx Xxxxx under this Agreement, each of the Parties
acknowledges that by entering into and performing its obligations under this
Agreement EDS will not assume and should not be exposed to the business and
operational risks associated with Xxxxxxxx Xxxxx’x business, and Xxxxxxxx
Xxxxx therefore agrees, subject to Sections 12.1(f) and 12.2, to
indemnify and defend EDS from any and all third party Losses arising out of the
conduct of Xxxxxxxx Xxxxx’x business, including the use by Xxxxxxxx Xxxxx
of the Services. |
|
(f) |
Procedures. The indemnification obligations set forth in this Section 12.1 will not
apply unless the Party claiming indemnification: |
| |
|
(i) |
Notice. Notifies the other promptly in writing of
any matters in respect of which the indemnity may apply and of which the
notifying Party has knowledge in order to allow the indemnitor the opportunity
to investigate and defend the matter; provided, however, that the
failure to so notify will only relieve the indemnitor of its obligations under
this Section 12.1 if and to the extent that the indemnitor is prejudiced
thereby; and |
| |
|
(ii) |
Control of Defense. Gives the other Party full
opportunity to control the response thereto and the defense thereof, including
any agreement relating to the settlement thereof; provided,
however, that the indemnitee will have the right to participate in any
legal proceeding to contest and defend a claim for indemnification involving a
third party and to be represented by legal counsel of its choosing, all at the
indemnitee’s cost and expense. However, if the indemnitor fails to promptly
assume the defense of the claim, the Party entitled to indemnification may
assume the defense at the indemnitor’s cost and expense. |
| |
The
indemnitor will not be responsible for any settlement or compromise made without
its consent, unless the indemnitee has tendered notice and the indemnitor has
then refused to assume and defend the claim and it is later determined that the
indemnitor was liable to assume and defend the claim. The indemnitee agrees to
cooperate in good faith with the indemnitor at the request and expense of the
indemnitor. |
|
(a) |
General Limitation. The liability of each Party to
the other for all damages arising out of or related to this Agreement,
regardless of the form of action that imposes liability, whether in contract,
equity, negligence, intended conduct, tort or otherwise, will be limited to and
will not exceed, in the aggregate for all claims, actions and causes of action
of every kind and nature, the sum of $10,000,000.00. |
|
(b) |
Limitation on Other Damages. In no event will the
measure of damages payable by either Party include, nor will either Party be
liable for, any amounts for loss of income, profit or savings or indirect,
incidental, consequential, exemplary, punitive or special damages of any party,
including third parties, even if such Party has been advised of the possibility
of such damages in advance, and all such damages are expressly disclaimed. |
|
(c) |
Exceptions to Limitations. The
limitations set forth in Sections 12.2(a) and
12.2(b) will not apply to (i) the liability of either Party to the extent
such liability results from (A) that Party’s acts of intentional tortious
conduct or gross negligence in the performance or nonperformance of its
obligations under this Agreement or (B) that Party’s nonperformance of its
payment obligations to the other expressly set forth in this Agreement
(including, with respect to Xxxxxxxx Xxxxx, Xxxxxxxx Xxxxx’x obligation to
make payments to EDS during the original term of this Agreement as required
hereby, whether in the form of charges for Services performed hereunder or for
payment or reimbursement of taxes, out-of-pocket expenses or pass-through
expenses, and EDS’ lost profits on such payments) or (ii) the liability of
Xxxxxxxx Xxxxx under Article IX. |
|
(d) |
Duty to Mitigate. Each Party has a
duty to mitigate the damages that would otherwise be recoverable from the other
pursuant to this Agreement by taking appropriate and reasonable actions to
reduce or limit the amount of such damages. |
|
(e) |
Contractual Statute of Limitations. No claim and
demand for mediation or arbitration or cause of action which arose out of an
event or events which occurred more than two years prior to the filing of a
demand for mediation or arbitration or suit alleging a claim or cause of action
may be asserted by either Party against the other. |
|
(f) |
Acknowledgment. The Parties expressly acknowledge
that the limitations and exclusions set forth in this Section 12.2 have
been the subject of active and complete negotiation between the Parties and
represent the Parties’ agreement taking into account each Party’s
level of risk associated with the performance or nonperformance of its
obligations under this Agreement and the payments and other benefits to be
derived by each Party pursuant to this Agreement. The provisions of this
Section 12.2 will survive the expiration or termination of this Agreement
for any reason. |
Article XIII.
Miscellaneous
| 13.1 |
Right to Engage in Other Activities. Subject to
Section 2.7 of this Agreement, Xxxxxxxx Xxxxx acknowledges and agrees that EDS
may provide information technology services for third parties at any EDS
facility that EDS may utilize from time to time for performing the Services.
Subject to the restrictions on the use of data and the disclosure of
confidential information set forth in Article VIII, nothing in this
Agreement will impair EDS’ right to acquire, license, market, distribute,
develop for itself or others or have others develop for EDS similar technology
performing the same or similar functions as the technology and Services
contemplated by this Agreement. |
| 13.2 |
Independent Contractors. The Parties are independent
contractors, and this Agreement will not be construed as constituting either
Party as partner, joint venturer or fiduciary of the other, as creating any
other form of legal association that would impose liability on one Party for the
act or failure to act of the other or as providing either Party with the right,
power or authority (express or implied) to create any duty or obligation of the
other. Except as otherwise expressly provided in this Agreement, each Party has
the sole right and obligation to supervise, manage, contract, direct, procure,
perform or cause to be performed all work to be performed by it pursuant to this
Agreement. |
| 13.3 |
Entire Agreement; Survival. This Agreement
(including the Schedules attached hereto, each of which is incorporated into
this Agreement by this reference) constitutes the full and complete statement of
the agreement of the Parties with respect to the subject matter hereof and
supersedes any previous or contemporaneous agreements, understandings or
communications, whether written or oral, relating to such subject matter. The
expiration or termination of this Agreement for any reason will not release
either Party from any liabilities or obligations set forth herein which (a) the
Parties have expressly agreed will survive any such expiration or termination or
(b) remain to be performed or by their nature would be intended to be
applicable following any such expiration or termination. |
| 13.4 |
Amendments; Waiver. Changes or modifications to this
Agreement may not be made orally or through a course of dealing, but only by a
written amendment or revision signed by the Parties. Any terms and conditions
varying from this Agreement on any order, invoice or other notification from
either Party are not binding on the other unless specifically accepted by the
other. Unless otherwise expressly provided in this Agreement, neither a delay
nor omission by either Party to exercise, nor a course of dealing with respect
to any right or power under this Agreement will be construed to be a waiver
thereof. No waiver of any breach of any provision of this Agreement will
constitute a waiver of any prior, concurrent or subsequent breach of the same or
any other provision hereof. |
| 13.5 |
Binding Nature; Assignment. This Agreement will be
binding on the Parties and their successors and permitted assigns (it being
understood and agreed that nothing contained in this Agreement is intended to
confer upon any party other than EDS and Xxxxxxxx Xxxxx any rights, benefits or
remedies of any kind or character whatsoever under or by reason of this
Agreement). Except as otherwise expressly provided in Article II and
except as noted below, neither Party may, nor will it have the power to, assign
this Agreement, or any part hereof, without the consent of the other. EDS may
assign its rights to Xxxxxxxx Xxxxx’x payments hereunder, including any
termination amount payable pursuant to Article XI, to a financial
institution or other third party in connection with any transaction entered into
to provide financing related to this Agreement or the obligations of EDS
hereunder, and any such assignee may further assign its rights hereunder in
connection with such financing. The Parties acknowledge that either of them may
become a party to one or more transactions in the form of a merger (including a
reincorporation merger), consolidation, reorganization, stock sale or exchange,
sale of all or substantially all of such Party’s assets or some similar or
related transaction, with the result being that the affected Party is the
surviving entity and by operation of law the surviving entity assumes the rights
and obligations under this Agreement or, if the affected Party is not the
surviving entity, the surviving entity continues to conduct the business
conducted by the affected Party prior to consummation of the transaction,
including the assumption of the rights and obligations under this Agreement. No
such transaction involving either Party will be deemed to be an assignment of
this Agreement requiring the consent of the other, unless (a) in the case of EDS
being involved in such a transaction, the transaction materially and adversely
affects EDS’ ability to continue to perform the Services in accordance with
this Agreement or (b) in the case of Xxxxxxxx Xxxxx being involved in such a
transaction, the transaction (i) materially changes the scope of Services
as described in this Agreement, (ii) impairs EDS’ ability to meet the
Service Levels, (iii) impacts the cost for EDS to perform its obligations
hereunder or (iv) impairs Xxxxxxxx Xxxxx’x ability to meet its financial
obligations hereunder. |
| 13.6 |
Export Regulations. This Agreement is expressly made
subject to any United States government laws, regulations, orders or other
restrictions regarding export from the United States of computer hardware,
software, technical data or derivatives of such hardware, software or technical
data. Notwithstanding anything to the contrary in this Agreement, Xxxxxxxx Xxxxx
will not directly or indirectly export (or reexport) any computer hardware,
software, technical data or derivatives of such hardware, software or technical
data, or permit the shipment of same: (a) into (or to a national or resident of)
Cuba, North Korea, Iran, Iraq, Libya, Syria or any other country to which the
United States has embargoed goods; (b) to anyone on the U.S. Treasury
Department’s List of Specially Designated Nationals, List of Specially
Designated Terrorists or List of Specially Designated Narcotics Traffickers, or
the U.S. Commerce Department’s Denied Parties List; or (c) to any country
or destination for which the United States government or a United States
governmental agency requires an export license or other approval for export
without first having obtained such license or other approval. Each Party will
reasonably cooperate with the other and will provide to the other promptly upon
request any end-user certificates, affidavits regarding reexport or other
certificates or documents as are reasonably requested to obtain approvals,
consents, licenses and/or permits required for any payment or any export or
import of products or services under this Agreement. The provisions of this
Section 13.6 will survive the expiration or termination of this Agreement
for any reason. |
| 13.7 |
Approvals and Similar Actions. Except as otherwise
expressly provided in this Agreement, where agreement, approval, acceptance,
consent or similar action is required of either Party by any provision of this
Agreement, such action will not be unreasonably withheld or delayed. An approval
or consent given by a Party under this Agreement will not relieve the other
Party from responsibility for complying with the requirements of this Agreement,
nor will it be construed as a waiver of any rights under this Agreement, except
as and to the extent otherwise expressly provided in such approval or consent. |
| 13.8 |
Notices. Except as otherwise expressly provided in
this Agreement, all notices under this Agreement will be in writing and will be
deemed to have been duly given if delivered personally or by a nationally
recognized courier service, faxed or mailed by registered or certified mail,
return receipt requested, postage prepaid, to the Parties at the addresses set
forth in Schedule 13.8. All notices under this Agreement that are
addressed as provided in this Section 13.8, (a) if delivered
personally or by a nationally recognized courier service, will be deemed given
upon delivery, (b) if delivered by facsimile, will be deemed given when
confirmed and (c) if delivered by mail in the manner described above, will be
deemed given on the fifth business day after the day it is deposited in a
regular depository of the United States mail. Either Party from time to time may
change its address or designee for notification purposes by giving the other
Party notice of the new address or designee and the date upon which such change
will become effective. |
| 13.9 |
Excused Performance. Neither Party will be deemed to
be in default hereunder, or will be liable to the other, for failure to perform
any of its non-monetary obligations under this Agreement for any period and to
the extent that such failure results from any event or circumstance beyond that
Party’s reasonable control (each, a Force Majeure Event”), including
acts or omissions of the other Party or third parties, natural disasters, riots,
war, civil disorder, court orders, acts or regulations of governmental bodies,
labor disputes or failures, and which it could not have prevented by reasonable
precautions or could not have remedied by the exercise of reasonable efforts,
provided that the exercise of such reasonable precautions or reasonable efforts
will not require the incurrence of any additional cost or expense. To the extent
that disaster recovery services are included in the Services, the foregoing will
not limit EDS’ obligation to provide such services unless they also are
affected by the Force Majeure Event. |
| 13.10 |
Public Relations and Marketing References. Each
Party will coordinate with the other regarding any media release, public
announcement or similar disclosure relating to this Agreement or its subject
matter and will give the other Party a reasonable opportunity to review and
comment on the content of such release, announcement or disclosure prior to its
release. This provision does not alter the restrictions on the disclosure of
confidential information set forth in Section 8.4 and, subject to
Section 8.4, will not be construed so as to delay or restrict either
Party from disclosing any information required to be disclosed in order to
comply with any applicable laws, rules or regulations. Notwithstanding the
foregoing but subject to any applicable laws, rules or regulations, each Party
will have the right to list the name of the other Party, to make general
references to the basic nature of the relationship between the Parties under
this Agreement and to describe generally the type of services being provided by
EDS to Xxxxxxxx Xxxxx under this Agreement in such Party’s promotional and
marketing materials, in such Party’s oral or visual presentations to third
parties, in interviews conducted by the news media or securities analysts and in
or through any other available media channels, including print, Internet, radio,
cable and broadcast mediums. |
| 13.11 |
Construction Rules. The Article and Section
headings and table of contents used in this Agreement are for convenience of
reference only and will not enter into the interpretation hereof. As used in
this Agreement, unless otherwise expressly provided to the contrary, (a) any
reference to a “Section”, “Article” or “Schedule”
is a reference to a Section or Article of this Agreement or a Schedule attached
to this Agreement, and (b) all references to days, months or years are
references to calendar days, months or years. To the extent that the provisions
of this Agreement and the Schedules are inconsistent, to the extent possible
such provisions will be interpreted so as to make them consistent, and if that
is not possible, the provisions of the Schedules will prevail. If any provision
of this Agreement is held to be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions will not in any way be
affected or impaired, and such provision will be deemed to be restated to
reflect the original intentions of the Parties as nearly as possible in
accordance with applicable law. The Parties agree that this Agreement is an
executory contract as contemplated by 11 U.S.C. Section 365. In performing
its obligations under this Agreement, neither Party will be required to
undertake any activity that would conflict with the requirements of any
applicable law, rule, regulation, interpretation, judgment, order or injunction
of any governmental authority. This Agreement may be executed in multiple
counterparts, each of which will be deemed an original and all of which taken
together will constitute one instrument. The Parties acknowledge and agree that
each has been represented by legal counsel of its choice throughout the
negotiation and drafting of this Agreement, that each has participated in the
drafting hereof and that this Agreement will not be construed in favor of or
against either Party solely on the basis of a Party’s drafting or
participation in the drafting of any portion of this Agreement. |
| 13.12 |
Accounting Terms. All accounting terms that are not
specifically defined herein, and all accounting obligations, duties, procedures
and practices that are undertaken pursuant to this Agreement, shall be
construed, interpreted and undertaken in accordance with generally accepted
accounting principles that exist in the United States of America from time to
time. |
| 13.13 |
Governing Law. This Agreement will be
governed by and construed in accordance with the substantive laws of the State
of Utah, without giving effect to any choice-of-law rules that may require the
application of the laws of another jurisdiction. |
In Witness
Whereof, the Parties have duly executed and delivered this
Agreement by their duly authorized representatives as of the Effective Date.
| XXXXXXXX XXXXX CO |
ELECTRONIC DATA SYSTEMS |
| |
EDS INFORMATION SERVICES L.L.C. |
Schedule of Definitions
Defined Term Location of Definition
------------ ----------------------
AAA .................................... Section 10.2
Access .................................... Section 5.5
Additional Services.......................... Section 3.6(a)
Agreement.................................... Introduction
Article .................................... Section 13.11
Base Line Assessment......................... Section 3.3(a)
BLS .................................... Schedule 9.7, Section 1
Collected Taxes.............................. Section 9.9(a)
Copy/Copies.................................. Schedule 7.6 [7.6(b)], Introduction
Developed Software........................... Section 7.1(e)
Dispute .................................... Section 10.1
ECI .................................... Schedule 9.7, Section 1
ECI Adjustable Charges....................... Schedule 9.7, Section 1
ECI Base Index............................... Schedule 9.7, Section 1
ECI Current Index............................ Schedule 9.7, Section 1
EDS .................................... Introduction
EDS Account Executive........................ Section 1.1
EDS-Acquired Equipment....................... Section 5.1
EDS Development Tools........................ Section 7.1(e)
EDS Services................................. Section 3.2
EDS Software................................. Section 7.1(a)
EDS-Vendor Software.......................... Section 7.1(b)
Effective Date............................... Introduction
EIS .................................... Introduction
Employee Offeree............................. Section 2.1
Equipment Leases............................. Section 5.2
Escrow Cap................................... Section 10.5
Expiration Date.............................. Section 3.1
Force Majeure Event.......................... Section 13.9
Xxxxxx Index Adjustable Charges.............. Schedule 9.7, Section 4
Index .................................... Schedule 9.7, Section 4
Items .................................... Section 6.1(e)
Key Positions................................ Section 2.2(b)
Licensed Programs............................ Section 7.2
Losses .................................... Section 12.1(a)
Maintenance Contracts........................ Section 5.4
Nonconformance............................... Section 6.1(g)
Other Deliverables........................... Section 7.1(h)
Party/Parties................................ Introduction
Percent Change............................... Schedule 9.7, Section 4
Privacy Laws................................. Section 8.3
Residual Technology.......................... Section 7.1(e)
Schedule .................................... Section 13.11
Section .................................... Section 13.11
Service Conversion Date...................... Schedule 9.4, Section 3
Service Levels............................... Section 3.3(c)
Services .................................... Section 3.2
Software .................................... Section 7.1(f)
Software Changes............................. Section 7.1(f)
Software Licenses............................ Section 5.3
Steering Committee........................... Section 1.3
Termination Transition....................... Section 11.4(b)
Third Party Provider......................... Section 11.4(b)
Transition Plan.............................. Section 11.4(b)(i)
Transitioned Employees....................... Section 2.1
Vendor .................................... Schedule 3.5, Section 1(a)
Xxxxxxxx Xxxxx............................... Introduction
Xxxxxxxx Xxxxx Data.......................... Section 8.1
Xxxxxxxx Xxxxx-Leased Equipment.............. Section 5.5
Xxxxxxxx Xxxxx-Owned Equipment............... Section 5.5
Xxxxxxxx Xxxxx Representative ............... Section 1.2
Xxxxxxxx Xxxxx Software...................... Section 7.1(c)
Xxxxxxxx Xxxxx-Vendor Software .............. Section 7.1(d)
Schedule 9.1
Charges
INTRODUCTION
| 1. |
Charges Sections. This Schedule 9.1 contains EDS' fees, charges and rates for the Agreement.
The Charges Sections contains a Resource Baseline Section, a Monthly Charges Section, a Variable Charges Section,
and an Inflation Adjustment Section.
|
|
(a) |
Resource Baseline Section. The Resource Baseline Section sets forth the
quantity of resources and other items for services contained in the Monthly
Charges (as defined below). Such quantity of resources and other items is
referred to herein as the “Resource Baseline”. The Resource Baseline
is set forth for each calendar year during the Initial Term. The Resource
Baseline for the last year of the Initial Term shall continue for each month
during which EDS provides termination assistance to Xxxxxxxx Xxxxx pursuant to
Section 11.5 of this Agreement.
|
|
(b) |
Monthly Charges Section. The Monthly Charges Section sets forth the
monthly charges to be paid by Xxxxxxxx Xxxxx to EDS for the Services applicable
to the Resource Baselines. The Monthly Charges Section shows the billing period
to which the base charges apply, the date on which such base charges will be
invoiced by EDS to Xxxxxxxx Xxxxx and various components of such charges. The
total of all such components are indicated in the last column of the Monthly
Charges Section and such total is referred to herein as the “Baseline
Monthly Charges”. The Baseline Monthly Charges for each month during which
EDS provides termination assistance to Xxxxxxxx Xxxxx pursuant to Section 11.5
of this Agreement shall be equal to the Monthly Charges for the last month of
the last year of the Initial Term. |
|
(c) |
Variable Charges Section. The Variable Charges Section sets forth the
Additional Resource Charges (“ARCs”) and the Reduced Resource Credits
(“RRCs”) that will be applied to the Baseline Monthly Charges as the
quantity of the items included in the Services provided by EDS varies from the
Resource Baseline by month. The method by which ARCs and RRCs are applied to the
Baseline Monthly Charges is further described in paragraph 4, below. The ARCs
and RRCs for the last month of the Initial Term shall continue for each month
during which EDS provides termination assistance to Xxxxxxxx Xxxxx pursuant to
Section 11.5 of this Agreement. |
|
(d) |
Inflation Adjustment Section. The Inflation Adjustment Section sets forth the method by which all of the charges,
fees and rates set forth in this Schedule will be increased during the term of the Agreement.
|
| 2. |
Minimum Monthly Charges. Notwithstanding anything to the contrary in this
Agreement or otherwise, Xxxxxxxx Xxxxx will be obligated to pay EDS at least the
Minimum Monthly Charges, which are defined to be eighty percent (80%) of the
then-current Baseline Monthly Charges, even if the application of RRCs would
reduce the amount payable by Xxxxxxxx Xxxxx to EDS during a month to below the
Minimum Monthly Charges. If, for two consecutive calendar months (the “Two
Months”), either (a) Xxxxxxxx Xxxxx has paid to EDS the Minimum Monthly
Charges even though the application of RRCs would have reduced the amount
payable by Xxxxxxxx Xxxxx to EDS for each of such months to below the Minimum
Monthly Charges, or (b) Xxxxxxxx Xxxxx has paid to EDS one hundred twenty
percent (120%) of the then current Baseline Monthly Charges due to the
application of ARCs, and Xxxxxxxx Xxxxx reasonably anticipates that the same
will continue for the following two calendar months, then, at the written
request of Xxxxxxxx Xxxxx, Xxxxxxxx Xxxxx and EDS will meet for the purpose of
negotiating in good faith adjustments to the Minimum Monthly Charges, the
Baseline Monthly Charges, and the ARCs and RRCs and to any other terms of this
Agreement that either party deems appropriate in connection therewith. In
conducting such negotiations, the parties will take into account the total
charges paid by Xxxxxxxx Xxxxx to EDS for Services, the reasons for Xxxxxxxx
Xxxxx’x reduced or increased demand for the Services, any written
commitments made by Xxxxxxxx Xxxxx to obtain Additional Services from EDS, and
EDS’ expectation at the time of the Effective Date for the revenue it was
to receive for Services at the Resource Baseline. Any adjustments to the Charges
and the other terms of this Agreement upon which the parties agree will be set
forth in a written amendment to this Agreement executed by the parties and will
be retroactive to the beginning of the Two Months. If the parties are unable to
reach agreement within sixty (60) days following EDS’ receipt of Xxxxxxxx
Xxxxx’x request for meetings, then the matter shall be submitted to the
Steering Committee for resolution. If, within thirty (30) days thereafter, the
Steering Committee is unable to resolve such matter, then either party may
initiate the dispute resolution process as set forth in Article X. |
| 3. |
Application of Variable Charges (ARCs and RRCs). If the actual quantity
of items included in the Services provided by EDS during any calendar month are
higher than the Resource Baseline for the applicable resource category
designated in the Resource Baseline Section of this Schedule 9.1, then Xxxxxxxx
Xxxxx will pay to EDS an additional amount calculated by multiplying the ARC for
the applicable resource category times the number of items in excess of the
Resource Baseline for that resource category in the applicable month. If the
actual quantity of items included in the Services provided by EDS during any
calendar month are less than the Resource Baseline for the applicable resource
category designated in the Resource Baseline Section of this Schedule 9.1, then
EDS will credit to Xxxxxxxx Xxxxx an amount calculated by multiplying the RRC
for the applicable resource category times the number of items below the
Resource Baseline for that resource category in the applicable month. ARCs and
RRCs will be itemized in the invoices sent by EDS to Xxxxxxxx Xxxxx. |
Schedule 9.1
Annual Adjustment to Charges
| 1. |
Adjustment to Charges. Unless otherwise
expressly provided in an Authorization Letter with respect to the charges to be
paid thereunder, the Parties acknowledge and agree to use the Employment Cost
Index for Total Compensation (not seasonally adjusted), Private Industry
Workers, White-collar occupations excluding sales, June 1989 = 100 (the
“ECI”), as the basis for annual adjustments to charges to be paid by
Xxxxxxxx Xxxxx to EDS under this Agreement for those Services listed in
Section 5 of this Schedule 9.1 (the “ECI Adjustable
Charges”). The ECI is published by the Bureau of Labor Statistics (the
“BLS”) of the U.S. Department of Labor. For purposes of this
Schedule 9.1, the most recently published ECI as of any anniversary of
the Effective Date is the “ECI Current Index”, and the “ECI Base
Index” is the ECI Current Index from the prior anniversary of the Effective
Date (or, for the first anniversary, the ECI most recently published as of the
Effective Date). If, on any anniversary of the Effective Date, the ECI Current
Index is more than 2% higher than the ECI Base Index, then, effective as of such
anniversary, an adjustment to the ECI Adjustable Charges will be made by
increasing the ECI Adjustable Charges by the percentage that the ECI Current
Index exceeded 102% of the ECI Base Index. In calculating the percentage
increase, the Parties agree to round to one decimal place. If, on any
anniversary of the Effective Date, the ECI Current Index is lower than 102% of
the ECI Base Index, no adjustment to the ECI Adjustable Charges will be made. If
the period from the ECI Base Index to the ECI Current Index is other than 12
months, an adjustment to a full year will be made in the manner indicated in the
example set forth in Section 3 of this Schedule 9.1. If an
adjustment is not made on an anniversary date for any reason, then the ECI Base
Index for the following anniversary date will be 102% of the ECI Base Index for
the anniversary date on which no adjustment was made, as indicated in the note
to the third example set forth in Section 3 of this Schedule
9.1. The ECI is published quarterly at the end of the month following the
quarter measured, and the most recently published ECI as of the Effective Date
was the ECI published on or around April 30, 2001 for the quarter ending March
31, 2001. The Parties acknowledge and agree that EDS will adjust the ECI
Adjustable Charges and will advise Xxxxxxxx Xxxxx of such adjustment in writing
so that the new charges will amend this Agreement and become effective on the
applicable anniversary of the Effective Date. If no adjustment is made on an
anniversary date for any reason, EDS will advise Xxxxxxxx Xxxxx in writing of
such fact. |
| 2. |
Adjustment to Charges Example.The following is an example of the adjustments described in Section 1 of this
Schedule 9.1.
The specific numbers used in the example are for illustration purposes only and are not necessarily reflective of an actual
calculation hereunder or the actual ECI.
|
Annual Adjustment on First Anniversary Date:
Example Charge under this Agreement $1,500.00
ECI Current Index 136.0
ECI Base Index (as of Effective Date) 129.9
Percentage Change (136.0 - 129.9) / 129.9 = 4.7%
Charge Increased by (1+ Percentage Change-2%) $1,500.00 * (1 + 4.7%-2%)
Equals Adjusted Charge $1,540.50
Annual Adjustment on Second Anniversary Date:
Adjusted Charge as of First Anniversary Date $1,540.50
ECI Current Index 143.2
ECI Base Index (as of First Anniversary Date) 136.0
Percentage Change (143.2 - 136.0) / 136.0 = 5.3%
Charge Increased by (1+ Percentage Change-2%) $1,540.50 * (1 + 5.3%-2%)
Equals Adjusted Charge $1,591.34
Annual Adjustment on Third Anniversary Date:
Adjusted Charge as of Second Anniversary Date $1,591.34
ECI Current Index 144.9
ECI Base Index (as of Second Anniversary Date) 143.2
Percentage Change (144.9 - 143.2) / 143.2 = 1.2%
Charge Increased by (1+ Percentage Change-2%) No change
Equals Adjusted Charge* No Change
* The ECI Base Index for the fourth anniversary date would be 146.1.
| 3. |
Changes to Index. In the event that the BLS
should stop publishing the ECI or should substantially change the content,
format or calculation methodology of the ECI, the Parties will substitute
another comparable measure published by a mutually agreeable source, except as
noted below. If the change is to redefine the base period for the ECI from one
period to some other period, the Parties will continue to use the index but will
use the new base period figures for all future adjustments. If the change is to
the name of the ECI, the new name will be used instead of the old name so long
as the numbers previously published for the index have not changed. If the
change is to the publication schedule, the Parties may agree in writing to use a
different publication schedule and to adjust any partial year to a full year, if
needed. The adjustment to convert a partial year to a full year is shown below. |
ECI Current Index as of July 19XX 151.0
ECI Base Index as of June 19XX-1 145.2
Percentage Change (rounded to 3 decimals) (151.0 - 145.2) / 145.2 = 3.994%
Percent Times 12 Divided # of Months in Period 3.994% * 12 / 13
Equals Percentage Change (rounded to 1 decimal)* 3.7%
* This calculation method will be used instead of the Percentage Change calculation shown in Section 2 of this Schedule
--------- ---------
9.1 if the period between the ECI Base Index and the ECI Current Index is other than 12 months.
---
| 4. |
Adjustments Using Xxxxxx Index. The Parties
acknowledge and agree to use the percent change in “Total Cash
Compensation” for Systems Integration Job Families (the “Percent
Change”), as the basis for annual adjustments to the charges to be paid by
Xxxxxxxx Xxxxx to EDS under this Agreement for those Services listed in
Section 5 of this Schedule 9.1 as being subject to this Section
4 (the “Xxxxxx Index Adjustable Charges”), as the Percent Change
is either reported in the Xxxxxx Associates Index for Total Cash Compensation
(the “Index”) or as such Systems Integration Job Families information
is otherwise made available by the management consulting firm of Xxxxxx
Associates LLC (or another comparable measure published or made available by a
mutually agreeable source should the Index no longer be published, the content
or format of the Index substantially change or Xxxxxx Associates LLC no longer
make comparable Systems Integration Job Families information available). If, on
any anniversary of the Effective Date during the term of this Agreement, the
most recently published or available Percent Change is greater than 4%, an
adjustment to the Xxxxxx Index Adjustable Charges will be made by increasing the
Xxxxxx Index Adjustable Charges by such Percent Change in excess of four percent
(4%). If an adjustment is not made on a anniversary of the Effective Date for
any reason, then the basis for measuring the Percent Change for the following
anniversary of the Effective Date will be 104% of the basis for measuring the
Percent Change for the anniversary of the Effective Date on which no adjustment
was made. The Parties acknowledge and agree that EDS will adjust the Xxxxxx
Index Adjustable Charges and will advise Xxxxxxxx Xxxxx of such adjustment in
writing so that the new charges will amend this Agreement and become effective
on the applicable anniversary of the Effective Date. If no adjustment is made on
a anniversary of the Effective Date for any reason, EDS will advise Xxxxxxxx
Xxxxx in writing of such fact. |
| 5. |
Service Categories. The Parties acknowledge and agree that the following Services will be subject to adjustment in
accordance with Section 1 of this Schedule 9.1: Midrange; Communications Management; Distributed Systems Management; Web
Hosting; and Leadership Support. The Parties acknowledge and agree that the following Services will be subject to
adjustment in accordance with Section 4 of this Schedule 9.1: Applications and Technical Architects.
|
Revised Schedule 9.1 (a)
Variable Monthly Charges
2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011
Midrange: (1)
Small / medium 2,838.31 3,180.41 3,244.02 3,308.90 3,375.08 3,442.58 3,511.43 3,581.66 3,653.29 3,726.36 3,800.88
Large case-by-case basis
Communications Mgmt: (1)
Voice
Definity Ports 9.35 10.62 10.83 11.05 11.27 11.49 11.72 11.96 12.20 12.44 12.69
Mailboxes 8.18 9.28 9.46 9.65 9.84 10.04 10.24 10.45 10.66 10.87 11.09
Rockwell ACD 0.66 0.75 0.77 0.78 0.80 0.81 0.83 0.85 0.86 0.88 0.90
Routers
Small 640 726.74 741.27 756.10 771.22 786.65 802.38 818.43 834.80 851.49 868.52
Medium 880 999.78 1,019.77 1,040.17 1,060.97 1,082.19 1,103.83 1,125.91 1,148.43 1,171.40 1,194.82
Large 1850 2101.05 2,143.07 2,185.93 2,229.65 2,274.24 2,319.73 2,366.12 2,413.45 2,461.71 2,510.95
Distributed Systems Mgmt: (1)
Per Desktop 87.71 97.12 99.06 101.04 103.06 105.13 107.23 109.37 111.56 113.79 116.07
Incremental Email Box 9.26 10.35 10.56 10.77 10.98 11.20 11.43 11.66 11.89 12.13 12.37
Information Systems Resource Rates: (2), (3)
Long-term:(5), (7)
Information Associate 9,400 9,776 10,167 10,574 10,997 11,437 11,894 12,370 12,865 13,379 13,914
Information Analyst 12,000 12,480 12,979 13,498 14,038 14,600 15,184 15,791 16,423 17,080 17,763
Information Specialist 14,100 14,664 15,251 15,861 16,495 17,155 17,841 18,555 19,297 20,069 20,871
Information Specialist - Senior 16,400 17,056 17,738 18,448 19,186 19,953 20,751 21,581 22,445 23,342 24,276
System Architect 17,800 18,512 19,252 20,023 20,823 21,656 22,523 23,424 24,361 25,335 26,348
DBA 17,800 18,512 19,252 20,023 20,823 21,656 22,523 23,424 24,361 25,335 26,348
Project Control Manager 17,800 18,512 19,252 20,023 20,823 21,656 22,523 23,424 24,361 25,335 26,348
Short-term: (4), (6)
Information Associate 10,900 11,336 11,789 12,261 12,751 13,262 13,792 14,344 14,917 15,514 16,135
Information Analyst 13,900 14,456 15,034 15,636 16,261 16,911 17,588 18,291 19,023 19,784 20,575
Information Specialist 16,400 17,056 17,738 18,448 19,186 19,953 20,751 21,581 22,445 23,342 24,276
Information Specialist - Senior 19,100 19,864 20,659 21,485 22,344 23,238 24,168 25,134 26,140 27,185 28,273
System Architect 20,600 21,424 22,281 23,172 24,099 25,063 26,066 27,108 28,193 29,320 30,493
DBA 20,600 21,424 22,281 23,172 24,099 25,063 26,066 27,108 28,193 29,320 30,493
Project Control Manager 20,600 21,424 22,281 23,172 24,099 25,063 26,066 27,108 28,193 29,320 30,493
E-Solutions Resource Rates: (2), (3)
Long-term:(5), (7)
Consultant Associate 14,535 15,116 15,721 16,350 17,004 17,684 18,391 19,127 19,892 20,688 21,515
Consultant 18,900 19,656 20,442 21,260 22,110 22,995 23,915 24,871 25,866 26,901 27,977
Consultant Specialist 23,985 24,944 25,942 26,980 28,059 29,181 30,349 31,563 32,825 34,138 35,504
Consultant Senior 28,345 29,479 30,658 31,884 33,160 34,486 35,865 37,300 38,792 40,344 41,958
Consultant Architect 32,700 34,008 35,368 36,783 38,254 39,785 41,376 43,031 44,752 46,542 48,404
Program Client Executive 36,340 37,794 39,305 40,878 42,513 44,213 45,982 47,821 49,734 51,723 53,792
Short-term: (4), (6), (8)
Consultant Associate 100 104 108 112 117 122 127 132 137 142 148
Consultant 130 135 141 146 152 158 164 171 178 185 192
Consultant Specialist 165 172 178 186 193 201 209 217 226 235 244
Consultant Senior 195 203 211 219 228 237 247 257 267 278 289
Consultant Architect 225 234 243 253 263 274 285 296 308 320 333
Program Client Executive 250 260 270 281 292 304 316 329 342 356 370
(1) Subject to ECI inflation index pursuant to Section 9.1 (d) of this Schedule
(2) Subject to Xxxxxx inflation index pursuant to Section 9.1 (d) of this Schedule
(3) Person-month is defined as 130 hours / month and the rates do not include travel-related expenses
(4) Short-term rates are for resources less than 6 months in duration
(5) Long-term rates are for resources greater than 6 months in duration
(6) Additional job classifications will be discounted 10% off EDS' Commercial Billing Rates
(7) Additional job classification will be discounted 25% off EDS' Commercial Billing Rates
(8) Short-term X.Xxxxxxxxx rates are hourly
2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011
Web Hosting (1)(2) ---- ---- ---- ---- ---- ---- ---- ---- ---- ---- ----
Sun level 2 Basic
Monthly 2,049.30 2,322.54 2,368.99 2,416.37 2,464.70 2,513.99 2,564.27 2,615.56 2,667.87 2,721.23 2,775.65
Start Up 3,081.60 3,492.48 3,562.33 3,633.58 3,706.25 3,780.37 3,855.98 3,933.10 4,011.76 4,092.00 4,173.84
Sun level 3 Enhanced
Monthly 3,039.30 3,444.54 3,513.43 3,583.70 3,655.37 3,728.48 3,803.05 3,879.11 3,956.69 4,035.83 4,116.54
Start Up 4,274.00 4,843.98 4,940.86 5,039.68 5,140.47 5,243.28 5,348.15 5,455.11 5,564.21 5,675.49 5,789.00
Sun Xxxxx 0 Xxxxxxxx
Xxxxxxx 3,934.80 4,459.44 4,548.63 4,639.60 4,732.39 4,827.04 4,923.58 5,022.05 5,122.49 5,224.94 5,329.44
Start Up 4,333.80 4,911.64 5,009.87 5,110.07 5,212.27 5,316.52 5,422.85 5,531.30 5,641.93 5,754.77 5,869.86
Sun Xxxxx 0 Xxxxx
Xxxxxxx 2,277.90 2,581.62 2,633.25 2,685.92 2,739.64 2,794.43 2,850.32 2,907.32 2,965.47 3,024.78 3,085.27
Start Up 3,676.50 4,166.70 4,250.03 4,335.03 4,421.74 4,510.17 4,600.37 4,692.38 4,786.23 4,881.95 4,979.59
Sun Xxxxx 0 Xxxxx
Xxxxxxx 3,223.80 3,653.64 3,726.71 3,801.25 3,877.27 3,954.82 4,033.91 4,114.59 4,196.88 4,280.82 4,366.44
Start Up 3,081.60 3,492.48 3,562.33 3,633.58 3,706.25 3,780.37 3,855.98 3,933.10 4,011.76 4,092.00 4,173.84
Custom Servers Case-by-Case basis
Additional momitoring
events 25.00 25.50 26.01 26.53 27.06 27.60 28.15 28.72 29.29 29.88 30.47
(1) Subject to ECI inflation index pursuant to Section 9.1 (d) of this Schedule
(2) Any change in monthly plus or minus 10% triggers a renegotiation
Xxxxxxxx Xxxxx will pay a one-time charge of $5,500 per 500-user-test instance. A test instance will be defined as 90 consecutive
calendar days. After 90 days, Xxxxxxxx Xxxxx may pay $2500 per additional day for testing services, or may pay an additional $5,500
to establish a new 90-day test instance. Xxxxxxxx Xxxxx will pay $85 per hour for testing labor, set up and testing activity
performed by EDS.
Each day the tests are run at EDS, Xxxxxxxx Xxxxx will pay $500 per day for EDS provided hardware and software infrastructure
services.
Web Hosting Internet Bandwidth Charges -
5 MB bandwidth 3200 3264 3,329.28 3,395.87 3,463.78 3,533.06 3,603.72 3,675.79 3,749.31 3,824.30 3,900.78
1. The usage of such variable capacity above the 1Mbps will be tracked on a monthly basis.
2. EDS will monitor the usage of the EDS Services by recording the actual usage every five minutes.
3. EDS will review the overall usage each calendar month and will discard the top five percent (5%) statistical usage.
4. The highest remaining value is then used as the basis for the connection usage for the calendar month and is referred to as the
"95th percentile."
Such usage will be rounded upward to the next highest Mbps for the calculation of the usage based fee.
Revised Schedule 9.1 (b)
Baseline Monthly Charges
Distribution Aggregate
Network Systems Web Technical Leadership Monthly
Start-up Midrange Management Management Applications Hosting Architects Support Charge
-------- -------- ---------- ---------- ------------ ------- ---------- ---------- ----------
April-01 975,702 114,498 125,197 139,431 195,827 84,416 35,600 83,251 1,753,922
May-01 114,498 125,197 139,431 195,827 84,416 35,600 83,251 778,220
June-01 114,498 111,097 139,431 195,827 84,416 35,600 83,251 764,120
July-01 114,498 111,097 139,431 195,827 84,416 35,600 83,251 764,120
August-01 114,498 111,097 139,431 195,827 84,416 35,600 83,251 764,120
September-01 826,998 137,870 120,097 169,043 246,936 84,416 35,600 83,251 1,704,211
October-01 137,870 120,097 169,043 246,936 84,416 35,600 83,251 877,213
November-01 137,870 120,097 169,043 246,936 84,416 35,600 83,251 877,213
December-01 137,870 120,097 169,043 246,936 84,416 35,600 83,251 877,213
January-02 137,870 123,334 169,043 246,936 83,327 35,600 83,251 879,361
February-02 137,870 123,334 169,043 246,936 83,327 35,600 83,251 879,361
March-02 137,870 123,334 169,043 246,936 83,327 35,600 83,251 879,361
April-02 140,627 125,801 172,424 256,813 84,994 37,024 84,916 902,599
May-02 140,627 125,801 172,424 256,813 84,994 37,024 84,916 902,599
June-02 140,627 125,801 172,424 256,813 84,994 37,024 84,916 902,599
July-02 140,627 125,801 172,424 256,813 84,994 37,024 84,916 902,599
August-02 140,627 125,801 172,424 256,813 84,994 37,024 84,916 902,599
September-02 140,627 125,801 172,424 256,813 84,994 37,024 84,916 902,599
October-02 140,627 125,801 172,424 256,813 84,994 37,024 84,916 902,599
November-02 140,627 125,801 172,424 256,813 84,994 37,024 84,916 902,599
December-02 140,627 125,801 172,424 256,813 84,994 37,024 84,916 902,599
January-03 140,627 125,161 170,658 246,764 84,014 37,024 84,915 889,163
February-03 140,627 125,161 170,658 246,764 84,014 37,024 84,916 889,164
March-03 140,627 125,161 170,658 246,764 84,014 37,024 84,916 889,164
April-03 143,440 127,665 174,071 256,634 85,694 38,505 86,614 912,623
May-03 143,440 127,665 174,071 256,634 85,694 38,505 86,614 912,623
June-03 143,440 127,665 174,071 256,634 85,694 38,505 86,614 912,623
July-03 143,440 127,665 174,071 256,634 85,694 38,505 86,614 912,623
August-03 143,440 127,665 174,071 256,634 85,694 38,505 86,614 912,623
September-03 143,440 127,665 174,071 256,634 85,694 38,505 86,614 912,623
October-03 143,440 127,665 174,071 256,634 85,694 38,505 86,614 912,623
November-03 143,440 127,665 174,071 256,634 85,694 38,505 86,614 912,623
December-03 143,440 127,665 174,071 256,634 85,694 38,505 86,614 912,623
January-04 143,440 127,023 172,388 246,183 84,812 38,505 86,614 898,965
February-04 143,440 127,023 172,388 246,183 84,812 38,505 86,614 898,965
March-04 143,440 127,023 172,388 246,183 84,812 38,505 86,614 898,965
April-04 146,309 129,563 175,836 256,030 86,508 40,045 88,347 922,638
May-04 146,309 129,563 175,836 256,030 86,508 40,045 88,347 922,638
June-04 146,309 129,563 175,836 256,030 86,508 40,045 88,347 922,638
July-04 146,309 129,563 175,836 256,030 86,508 40,045 88,347 922,638
August-04 146,309 129,563 175,836 256,030 86,508 40,045 88,347 922,638
September-04 146,309 129,563 175,836 256,030 86,508 40,045 88,347 922,638
October-04 146,309 129,563 175,836 256,030 86,508 40,045 88,347 922,638
November-04 146,309 129,563 175,836 256,030 86,508 40,045 88,347 922,638
December-04 146,309 129,563 175,836 256,030 86,508 40,045 88,347 922,638
January-05 146,309 128,928 175,803 256,030 85,714 40,045 88,347 921,176
February-05 146,309 128,928 175,803 256,030 85,714 40,045 88,347 921,176
March-05 146,309 128,928 175,803 256,030 85,714 40,045 88,347 921,176
April-05 149,235 131,507 179,319 266,272 87,428 41,647 90,113 945,521
May-05 149,235 131,507 179,319 266,272 87,428 41,647 90,113 945,521
June-05 149,235 131,507 179,319 266,272 87,428 41,647 90,113 945,521
July-05 149,235 131,507 179,319 266,272 87,428 41,647 90,113 945,521
August-05 149,235 131,507 179,319 266,272 87,428 41,647 90,113 945,521
September-05 149,235 131,507 179,319 266,272 87,428 41,647 90,113 945,521
October-05 149,235 131,507 179,319 266,272 87,428 41,647 90,113 945,521
November-05 149,235 131,507 179,319 266,272 87,428 41,647 90,113 945,521
December-05 149,235 131,507 179,319 266,272 87,428 41,647 90,113 945,521
January-06 149,235 130,879 179,319 266,272 86,713 41,647 90,113 944,177
February-06 149,235 130,879 179,319 266,272 86,713 41,647 90,113 944,177
March-06 149,235 130,879 179,319 266,272 86,713 41,647 90,113 944,177
April-06 152,220 133,496 182,905 276,922 88,447 43,313 91,916 969,219
May-06 152,220 133,496 182,905 276,922 88,447 43,313 91,916 969,219
June-06 152,220 133,496 182,905 276,922 88,447 43,313 91,916 969,219
July-06 152,220 133,496 182,905 276,922 88,447 43,313 91,916 969,219
August-06 152,220 133,496 182,905 276,922 88,447 43,313 91,916 969,219
September-06 152,220 133,496 182,905 276,922 88,447 43,313 91,916 969,219
October-06 152,220 133,496 182,905 276,922 88,447 43,313 91,916 969,219
November-06 152,220 133,496 182,905 276,922 88,447 43,313 91,916 969,219
December-06 152,220 133,496 182,905 276,922 88,447 43,313 91,916 969,219
January-07 152,220 132,874 182,905 276,922 87,803 43,313 91,916 967,953
February-07 152,220 132,874 182,905 276,922 87,803 43,313 91,916 967,953
March-07 152,220 132,874 182,905 276,922 87,803 43,313 91,916 967,953
April-07 155,264 135,531 186,563 287,999 89,559 45,045 93,754 993,716
May-07 155,264 135,531 186,563 287,999 89,559 45,045 93,754 993,716
June-07 155,264 135,531 186,563 287,999 89,559 45,045 93,754 993,716
July-07 155,264 135,531 186,563 287,999 89,559 45,045 93,754 993,716
August-07 155,264 135,531 186,563 287,999 89,559 45,045 93,754 993,716
September-07 155,264 135,531 186,563 287,999 89,559 45,045 93,754 993,716
October-07 155,264 135,531 186,563 287,999 89,559 45,045 93,754 993,716
November-07 155,264 135,531 186,563 287,999 89,559 45,045 93,754 993,716
December-07 155,264 135,531 186,563 287,999 89,559 45,045 93,754 993,716
January-08 155,264 134,914 186,563 287,999 88,979 45,045 93,754 992,519
February-08 155,264 134,914 186,563 287,999 88,979 45,045 93,754 992,519
March-08 155,264 134,914 186,563 287,999 88,979 45,045 93,754 992,519
April-08 158,369 137,612 190,295 299,519 90,759 46,847 95,629 1,019,031
May-08 158,369 137,612 190,295 299,519 90,759 46,847 95,629 1,019,031
June-08 158,369 137,612 190,295 299,519 90,759 46,847 95,629 1,019,031
July-08 158,369 137,612 190,295 299,519 90,759 46,847 95,629 1,019,031
August-08 158,369 137,612 190,295 299,519 90,759 46,847 95,629 1,019,031
September-08 158,369 137,612 190,295 299,519 90,759 46,847 95,629 1,019,031
October-08 158,369 137,612 190,295 299,519 90,759 46,847 95,629 1,019,031
November-08 158,369 137,612 190,295 299,519 90,759 46,847 95,629 1,019,031
December-08 158,369 137,612 190,295 299,519 90,759 46,847 95,629 1,019,031
January-09 158,369 137,002 190,295 299,519 90,237 46,847 95,629 1,017,899
February-09 158,369 137,002 190,295 299,519 90,237 46,847 95,629 1,017,899
March-09 158,369 137,002 190,295 299,519 90,237 46,847 95,629 1,017,899
April-09 161,537 139,742 194,100 311,500 92,042 48,721 97,542 1,045,184
May-09 161,537 139,742 194,100 311,500 92,042 48,721 97,542 1,045,184
June-09 161,537 139,742 194,100 311,500 92,042 48,721 97,542 1,045,184
July-09 161,537 139,742 194,100 311,500 92,042 48,721 97,542 1,045,184
August-09 161,537 139,742 194,100 311,500 92,042 48,721 97,542 1,045,184
September-09 161,537 139,742 194,100 311,500 92,042 48,721 97,542 1,045,184
October-09 161,537 139,742 194,100 311,500 92,042 48,721 97,542 1,045,184
November-09 161,537 139,742 194,100 311,500 92,042 48,721 97,542 1,045,184
December-09 161,537 139,742 194,100 311,500 92,042 48,721 97,542 1,045,184
January-10 161,537 139,139 194,100 311,500 91,572 48,721 97,542 1,044,111
February-10 161,537 139,139 194,100 311,500 91,572 48,721 97,542 1,044,111
March-10 161,537 139,139 194,100 311,500 91,572 48,721 97,542 1,044,111
April-10 164,767 141,921 197,982 323,960 93,403 50,670 99,493 1,072,197
May-10 164,767 141,921 197,982 323,960 93,403 50,670 99,493 1,072,197
June-10 164,767 141,921 197,982 323,960 93,403 50,670 99,493 1,072,197
July-10 164,767 141,921 197,982 323,960 93,403 50,670 99,493 1,072,197
August-10 164,767 141,921 197,982 323,960 93,403 50,670 99,493 1,072,197
September-10 164,767 141,921 197,982 323,960 93,403 50,670 99,493 1,072,197
October-10 164,767 141,921 197,982 323,960 93,403 50,670 99,493 1,072,197
November-10 164,767 141,921 197,982 323,960 93,403 50,670 99,493 1,072,197
December-10 164,767 141,921 197,982 323,960 93,403 50,670 99,493 1,072,197
January-11 164,767 141,330 197,982 323,960 92,980 50,670 99,493 1,071,183
February-11 164,767 141,330 197,982 323,960 92,980 50,670 99,493 1,071,183
March-11 164,767 141,330 197,982 323,960 92,980 50,670 99,493 1,071,183
Schedule 11.4
Termination for Convenience Charges
The Parties agree that if
the Agreement is terminated on other than an anniversary of the Effective Date,
and the termination fee as of the anniversary of the Effective Date preceding
the effective termination date is greater than the termination fee as of the
anniversary of the Effective Date following the effective termination date, then
Xxxxxxxx Xxxxx will pay to EDS a prorated share of such difference, such
proration to be based upon the number of days elapsed in the contract year prior
to the effective termination date.
Section 11.4 Section (A)
Effective Date of Termination Termination for Convenience Fees
----------------------------- --------------------------------
April 1, 2002 - March 31, 2003 The total Fees paid or payable by Xxxxxxxx Xxxxx to EDS for the twelve (12) calendar
months immediately preceding the date on which EDS received Xxxxxxxx Xxxxx'x notice of
termination for convenience.
April 1, 2003 - March 31, 2004 The total Fees paid or payable by Xxxxxxxx Xxxxx to EDS for the ten (10) calendar months
immediately preceding the date on which EDS received Xxxxxxxx Xxxxx'x notice of
termination for convenience.
April 1, 2004 - March 31, 2005 The total Fees paid or payable by Xxxxxxxx Xxxxx to EDS for the eight (8) calendar
months immediately preceding the date on which EDS received Xxxxxxxx Xxxxx'x notice of
termination for convenience.
April 1, 2005 - March 31, 2006 The total Fees paid or payable by Xxxxxxxx Xxxxx to EDS for the six (6) calendar months
immediately preceding the date on which EDS received Xxxxxxxx Xxxxx'x notice of
termination for convenience.
April 1, 2006 - March 31, 2007 The total Fees paid or payable by Xxxxxxxx Xxxxx to EDS for the three (3) calendar
months immediately preceding the date on which EDS received Xxxxxxxx Xxxxx'x notice of
termination for convenience.
April 1, 2007 - March 31, 2008 The total Fees paid or payable by Xxxxxxxx Xxxxx to EDS for the three (3) calendar
months immediately preceding the date on which EDS received Xxxxxxxx Xxxxx'x notice of
termination for convenience.
April 1, 2008 - March 31, 2009 The total Fees paid or payable by Xxxxxxxx Xxxxx to EDS for the three (3) calendar
months immediately preceding the date on which EDS received Franklin Covey's notice of
termination for convenience.
April 1, 2009 - March 31, 2010 The total Fees paid or payable by Franklin Covey to EDS for the three (3) calendar
months immediately preceding the date on which EDS received Franklin Covey's notice of
termination for convenience.
April 1, 2010 - March 31, 2011 The total Fees paid or payable by Franklin Covey to EDS for the three (3) calendar
months immediately preceding the date on which EDS received Franklin Covey's notice of
termination for convenience.
Section 11.4 Section (B)
Effective Date of Termination Termination for Convenience Fees
----------------------------- --------------------------------
April 1, 2002 - March 31, 2003 The total Fees paid or payable by Franklin Covey to EDS for the three (3) calendar
months immediately preceding the date on which EDS received Franklin Covey's notice of
termination for convenience.
April 1, 2003 - March 31, 2004 The total Fees paid or payable by Franklin Covey to EDS for the three (3) calendar
months immediately preceding the date on which EDS received Franklin Covey's notice of
termination for convenience.
April 1, 2004 - March 31, 2005 The total Fees paid or payable by Franklin Covey to EDS for the three (3) calendar
months immediately preceding the date on which EDS received Franklin Covey's notice of
termination for convenience.
April 1, 2005 - March 31, 2006 The total Fees paid or payable by Franklin Covey to EDS for the three (3) calendar
months immediately preceding the date on which EDS received Franklin Covey's notice of
termination for convenience.
April 1, 2006 - March 31, 2007 The total Fees paid or payable by Franklin Covey to EDS for the three (3) calendar
months immediately preceding the date on which EDS received Franklin Covey's notice of
termination for convenience.
April 1, 2007 - March 31, 2008 The total Fees paid or payable by Franklin Covey to EDS for the three (3) calendar
months immediately preceding the date on which EDS received Franklin Covey's notice of
termination for convenience.
April 1, 2008 - March 31, 2009 The total Fees paid or payable by Franklin Covey to EDS for the three (3) calendar
months immediately preceding the date on which EDS received Franklin Covey's notice of
termination for convenience.
April 1, 2009 - March 31, 2010 The total Fees paid or payable by Franklin Covey to EDS for the three (3) calendar
months immediately preceding the date on which EDS received Franklin Covey's notice of
termination for convenience.
April 1, 2010 - March 31, 2011 The total Fees paid or payable by Franklin Covey to EDS for the three (3) calendar
months immediately preceding the date on which EDS received Franklin Covey's notice of
termination for convenience.
Section 11.4
Section (C)
Effective Date of Termination Termination for Convenience Fees
----------------------------- --------------------------------
April 1, 2002 - March 31, 2003 The total Fees paid or payable by Franklin Covey to EDS for the twelve (12) calendar
months immediately preceding the date on which EDS received Franklin Covey's notice of
termination for convenience.
April 1, 2003 - March 31, 2004 The total Fees paid or payable by Franklin Covey to EDS for the ten (10) calendar months
immediately preceding the date on which EDS received Franklin Covey's notice of
termination for convenience.
April 1, 2004 - March 31, 2005 The total Fees paid or payable by Franklin Covey to EDS for the three (3) calendar
months immediately preceding the date on which EDS received Franklin Covey's notice of
termination for convenience.
April 1, 2005 - March 31, 2006 The total Fees paid or payable by Franklin Covey to EDS for the three (3) calendar
months immediately preceding the date on which EDS received Franklin Covey's notice of
termination for convenience.
April 1, 2006 - March 31, 2007 The total Fees paid or payable by Franklin Covey to EDS for the three (3) calendar
months immediately preceding the date on which EDS received Franklin Covey's notice of
termination for convenience.
April 1, 2007 - March 31, 2008 The total Fees paid or payable by Franklin Covey to EDS for the three (3) calendar
months immediately preceding the date on which EDS received Franklin Covey's notice of
termination for convenience.
April 1, 2008 - March 31, 2009 The total Fees paid or payable by Franklin Covey to EDS for the three (3) calendar
months immediately preceding the date on which EDS received Franklin Covey's notice of
termination for convenience.
April 1, 2009 - March 31, 2010 The total Fees paid or payable by Franklin Covey to EDS for the three (3) calendar
months immediately preceding the date on which EDS received Franklin Covey's notice of
termination for convenience.
April 1, 2010 - March 31, 2011 The total Fees paid or payable by Franklin Covey to EDS for the three (3) calendar
months immediately preceding the date on which EDS received Franklin Covey's notice of
termination for convenience.
