CONFIDENTIAL TREATMENT REQUESTED UNDER 17 C.F.R. SECTIONS 200.80 AND 240.24b-2.
*** INDICATES OMITTED MATERIAL THAT IS THE SUBJECT OF A CONFIDENTIAL TREATMENT
REQUEST FILED SEPARATELY WITH THE COMMISSION
EXHIBIT 10.1
MASTER AGREEMENT
FOR
OPERATIONS SUPPORT SERVICES
This Master Agreement is entered into as of January 1, 1998 (the "Effective
---------
Date"), between
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1. International Business Machines Corporation, a New York corporation
("IBM"),
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AND
2. Equifax Inc., a Georgia corporation ("Equifax"), and constitutes a
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complete restatement and further amendment of that certain Agreement for Systems
Operations Services, dated April 20, 1993, as amended, between IBM (successor in
interest to Integrated Systems Solutions Corporation ("ISSC")) and Equifax (the
----
"1993 Agreement").
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The Parties agree to the terms and conditions set forth in this Master
Agreement (including the forms of Exhibits and Schedules referenced in this
Master Agreement), and in each Transaction Document (including the Supplement
and Schedules referenced in each Transaction Document) executed by the Parties
referencing this Master Agreement. Each Transaction Document is incorporated
into this Master Agreement, and the several Transaction Documents and this
Master Agreement are herein collectively referred to as the "Agreement".
Signed for and on behalf of IBM:
INTERNATIONAL BUSINESS MACHINES CORPORATION
Signature: * 7/7/98
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Title: Vice President
---------------------------------
Signed for and on behalf of Equifax:
EQUIFAX INC.
Signature: * 7/7/98
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Title: Corporate Vice President
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TABLE OF CONTENTS
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Page
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1. PURPOSE/STRUCTURE/TERM OF AGREEMENT................................... 1
1.1 Purpose of Agreement............................................ 1
1.2 Structure of Agreement.......................................... 2
1.3 Term of Agreement............................................... 3
1.4 Extension of Services........................................... 3
2. DEFINITIONS........................................................... 3
3. THE SERVICES.......................................................... 15
3.1 Obligation to Provide Services.................................. 15
3.2 Performance..................................................... 15
3.3 Disaster Recovery Services...................................... 16
3.4 Audits.......................................................... 16
3.5 Facilities and Data Center...................................... 17
3.6 Security........................................................ 18
3.7 Technology Refresh.............................................. 18
3.8 Software Licenses............................................... 18
3.9 Software Currency............................................... 20
3.10 * .......................................................... 20
3.11 Software - Substitutions and Additions.......................... 21
3.12 New Services.................................................... 21
3.13 Affiliates...................................................... 22
4. WARRANTIES/REPRESENTATIONS/COVENANTS.................................. 22
4.1 Work Standards.................................................. 22
4.2 Noninfringement................................................. 23
4.3 * ........................................................... 23
4.4 Authorization and Enforceability................................ 23
4.5 Disclaimer...................................................... 23
4.6 Regulatory Proceedings and Compliance with Laws................. 24
4.7 * ........................................................... 24
4.8 Covenant of Cooperation and Good Faith.......................... 24
5. TRANSITION............................................................ 24
5.1 Transition Plan................................................. 24
5.2 Affected Employees.............................................. 25
5.3 Resources and Facilities........................................ 25
6. INTEGRATED PLANNING TEAM/CHANGE CONTROL PROCESS....................... 26
6.1 Equifax/IBM Integrated Planning Team............................ 26
6.2 Reports/Projections/Plans....................................... 27
6.3 Change Control Process........................................... 28
7. SERVICES STAFFING/MANAGEMENT/ADMINISTRATION........................... 29
7.1 Project Executives.............................................. 29
7.2 Replacement of Personnel........................................ 29
7.3 Retention of Experienced Personnel.............................. 30
7.4 Efficient Use of Resources...................................... 30
8. RELATIONSHIP PROTOCOLS................................................ 30
8.1 Evolving Nature of Relationship................................. 30
8.2 Required Consents............................................... 31
8.3 Appointment as Attorney In Fact................................. 33
8.4 Conflicts of Interests.......................................... 34
8.5 Alternate Providers............................................. 34
8.6 Use of Subcontractors........................................... 35
8.7 Equifax Approvals and Notification.............................. 36
9. CHARGES/NEW SERVICES/INVOICES/PAYMENTS................................ 36
9.1 Disbursements................................................... 36
9.2 Monthly Charge.................................................. 36
9.3 Additional Charges.............................................. 37
9.4 Cost of Living Adjustment....................................... 37
9.5 Taxes........................................................... 37
9.6 New Services.................................................... 38
9.7 Invoice Payment................................................. 38
9.8 * ........................................................... 38
9.9 * ........................................................... 39
9.10 Other Credits................................................... 40
9.11 * ........................................................... 40
9.12 Disputed Charges/Credits........................................ 40
9.13 Reduction of Equifax Work....................................... 41
10. INTELLECTUAL PROPERTY RIGHTS.......................................... 41
10.1 Ownership of Materials.......................................... 41
10.2 Obligations Regarding Materials................................. 42
11. CONFIDENTIALITY/DATA SECURITY......................................... 43
11.1 Confidential Information........................................ 43
11.2 Obligations..................................................... 43
11.3 Exclusions...................................................... 44
11.4 Loss of Company Information..................................... 44
11.5 Limitation...................................................... 45
11.6 Data............................................................ 45
12. TERMINATION........................................................... 45
12.1 Termination By Equifax.......................................... 45
12.2 Termination by IBM.............................................. 46
12.3 Termination Charges............................................. 46
12.4 [Reserved]..................................................... 47
12.5 Services Transfer Assistance................................... 47
12.6 Other Rights Upon Termination.................................. 48
12.7 Effect of Termination/Survival of Selected Provisions.......... 49
13. LIABILITY............................................................. 49
13.1 Liability Caps................................................. 49
13.2 Exclusions..................................................... 50
13.3 Direct Damages and Cover Charges............................... 50
13.4 Dependencies................................................... 51
13.5 Remedies....................................................... 51
14. INDEMNITIES........................................................... 51
14.1 Indemnity by IBM............................................... 51
14.2 Indemnity by Equifax........................................... 53
14.3 Employment Actions............................................. 54
14.4 Exclusive Remedy............................................... 55
14.5 Indemnification Procedures..................................... 55
15. INSURANCE AND RISK OF LOSS............................................ 55
15.1 IBM Insurance.................................................. 55
15.2 Risk of Property Loss.......................................... 56
15.3 * ........................................................... 57
16. DISPUTE RESOLUTION.................................................... 57
16.1 Dispute Resolution Procedures.................................. 57
16.2 Continued Performance.......................................... 58
17. GENERAL............................................................... 59
17.1 Relationship of Parties........................................ 59
17.2 Entire Agreement, Updates, Amendments and Modifications........ 59
17.3 Force Majeure.................................................. 59
17.4 Nonperformance................................................. 60
17.5 Waiver......................................................... 60
17.6 Severability................................................... 60
17.7 Counterparts................................................... 61
17.8 Governing Law.................................................. 61
17.9 Binding Nature and Assignment.................................. 61
17.10 Notices........................................................ 61
17.11 No Third Party Beneficiaries................................... 63
17.12 Other Documents................................................ 63
17.13 Consents and Approvals......................................... 63
17.14 Headings....................................................... 64
17.15 Remarketing.................................................... 64
17.16 Commencement of Actions........................................ 64
17.17 IBM Logo Products Warranties................................... 65
EXHIBITS
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EXHIBIT
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1 Master Agreement Structure Diagram
2 Transaction Document Structure Diagram
3 IPT Charter and Operating Procedures Guidelines
N.B.: The Exhibits and Attachments referenced in the Schedule of
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Exhibits and Schedule of Attachments, and elsewhere in this Agreement,
are hereby incorporated by reference. These Exhibits and Attachments
have been omitted for purposes of this filing, but will be furnished
supplementally to the Commission upon request.
ATTACHMENTS
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FORM OF TRANSACTION DOCUMENT
FORM OF SUPPLEMENT
Schedule TITLE
A "Applications Software"
* - "Systems Software - Equifax"
* - "Systems Software - IBM"
B "Systems Software"
* - "Systems Software - Equifax"
* - "Systems Software - IBM"
C "Equifax Provided Hardware"
*
*
D "IBM Machines"
*
*
E The "Services, Measures of Utilization, and
* Operational and Financial Responsibilities"
*
F Leases, Licenses and Other Contracts
*
*
G "Disaster Recovery Services"
*
*
H "Transition Plan"
*
TD)
I "Network Locations"
*
J "Charging Methodologies"
*
K "Applications Installation Standards"
* (Operating Environment IT
*
L "Security Procedures and Responsibilities -
* Data and Physical"
*
M "Help Desk Services"
*
*
N "Projects"
*
*
O "Affected Employees"
*
P Maintenance Terms
*
Q Outstanding Employee Claims
*
R "Services Transition Assistance"
*
S "Service Levels *
*
*
T "Equifax Provided Office Furnishings"
*
U "▇▇▇▇ of Sale"
*
V "Key Employees"
*
1. PURPOSE/STRUCTURE/TERM OF AGREEMENT
1.1 PURPOSE OF AGREEMENT
a) IBM is a provider of a broad range of operations support services for on-
line information services companies including, without limitation,
information technology, information management, communications and related
services, and is experienced and skilled in the administration, management,
provision and performance of such services and the business functions,
responsibilities and tasks attendant with such services. IBM desires (i)
to continue to provide certain of these operations support services to the
Equifax Group for the Equifax Business, and to continue to perform and
assume the functions, responsibilities and tasks attendant with such
operations support services as currently performed by IBM for the Equifax
Business and the Equifax Group; and (ii) to provide additional quantities
and elements of these and other operations support services to the Equifax
Group for the Equifax Business and to perform and assume the functions,
responsibilities and tasks attendant with such operations support services
as currently performed by the Equifax Group or as envisioned to be required
for the Equifax Business and the Equifax Group, all as specifically set
forth in this Agreement. Equifax desires that such operations support
services for the Equifax Business and the Equifax Group and the attendant
functions, responsibilities and tasks, be performed and assumed by IBM.
The Agreement documents the terms and conditions under which (i) the
Equifax Group will obtain such operations support services from IBM and
(ii) IBM will administer, manage, support, provide and perform such
services and the functions, responsibilities and tasks attendant with such
services, for the Equifax Group.
b) The Parties have identified goals and objectives that they intend that
IBM's performance pursuant to the Agreement will assist the Parties to
achieve. These goals and objectives include the following: (i) engaging IBM
(A) under a master agreement to provide, and/or cause to be provided
through its Affiliates and other subcontractors, certain operations support
services to Equifax and certain of its Affiliates on a worldwide basis *
(B) to * provide such operations support services to, and perform and
assume the functions, responsibilities and tasks attendant with such
support services for, the Equifax Business and the Equifax Group * of
the Equifax Business and the Equifax Group; and (C) to * define * of
the information management systems operations of the Equifax Group in
support of the Equifax Business; (ii) * for current and additional
resource consumption and for reductions in resource consumption and *
resources chargeable and available to the Equifax Group and committed by
IBM to the Equifax Group; (iii) taking advantage of * to improve *
experienced by the Equifax Group and to enable the Equifax Group to *
for the Equifax Business; (iv) * of the Equifax Group's * covered
under this Agreement; (v) * to the Equifax Group; (vi) * the *
(vii) * of the Equifax Group and Equifax Business; and (viii) providing
an opportunity to transition the Services back to the Equifax Group or to
another service provider from IBM *
c) IBM recognizes that the Equifax Group * customer and agrees that * and
requires that IBM * where commercially reasonable to attain *
including, without limitation, * to the Equifax Group *
d) The provisions of this Section 1.1 are intended to be a statement of the
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purpose of the Agreement and are not intended to alter the plain meaning of
the terms and conditions of the Agreement or to require either Party to
undertake performance obligations beyond those set forth in the Agreement.
* the * of the Agreement are * such * and * with the *
1.2 STRUCTURE OF AGREEMENT
a) The Services will be grouped around the following technology platforms and
clusters of services: * Each such technology platform/cluster of services
is herein referred to generically as a "Tower".
b) The Agreement is comprised of (i) the provisions set forth in this Master
Agreement and the forms of the Exhibits and Schedules referenced herein as
illustrated in Exhibit 1; and (ii) each Transaction Document including the
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Supplement and Schedules referenced in each Transaction Document as
illustrated in Exhibit 2.
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c) The Services will be defined * and all Towers located at one (1) site,
or to be migrated to one (1) site, will be the subject of a single
Transaction Document in the form of Exhibit 3. Each Transaction Document
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will be comprised of a Supplement in the form of Exhibit 4 and Schedules in
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the forms described in Exhibit 1, configured as noted on Exhibit 2. The
--------- ---------
Transaction Documents will collectively define the Services provided to the
Equifax Group across multiple Towers at multiple locations in one (1) or
more countries and the terms and conditions upon which the Services will be
provided.
d) Transaction Documents will be executed by the Parties. The terms of
Transaction Documents will be governed by the terms of the Master Agreement
unless the Parties specifically note the deviations from the terms of the
Master Agreement for the purposes of such Transaction Document in the
Section of the Transaction Document entitled "Deviations From Terms of
Master Agreement".
e) Each Transaction Document will be submitted to and approved by the
Integrated Planning Team prior to execution by the Parties. The approval
will be evidenced by a representative of each of the Parties who is also a
member of the Integrated Planning Team, noting and attesting to the
approval of the Integrated Planning Team on a cover sheet to such
Transaction Document.
f) IBM and Equifax will be the primary contracting parties under the Agreement
and under each Transaction Document. Each of the Parties may assign a
Transaction Document to one of its Affiliates for performance, *
Moreover, as a condition precedent to such assignment, the Affiliate shall
accept such assignment and agree to assume the full, timely and proper
performance of the duties and obligations of the Party assigning such
Transaction Document to such Affiliate in a written document in form and
content satisfactory to the other Party.
1.3 TERM OF AGREEMENT
The term of the Agreement will begin as of the Effective Date and will terminate
upon the later to occur of (a) the expiration of the Transaction Document with
the longest term extending past the tenth (10/th/) anniversary of the Effective
Date, or (b) upon a termination date that is effective not sooner than six (6)
months after the tenth (10/th/) anniversary of the Effective Date set forth in a
notice by either Party to the other Party (the "Term"), unless earlier
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terminated in accordance with the provisions of the Agreement.
1.4 EXTENSION OF SERVICES
Equifax may request and IBM will once extend the provision of the Services
pursuant to any Transaction Document or the Services Transfer Assistance
pursuant to any Transaction Document for up to * ("Extension Period") upon not
less than * prior written notice before the scheduled termination or
expiration of the provision of such Services or Services Transfer Assistance, or
if applicable, notice given within * after the effective date of a notice of
termination for any reason by either Party, other than Termination for
Convenience. However, in the event Equifax is in default with respect to the
payment of any amounts under a Transaction Document at the start of the
Extension Period, IBM will extend the provision of such Services or Services
Transfer Assistance as described in this Section 1.4, only if * and *
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during such Extension Period and * such Transaction Document for such *
period. Equifax will be * for the remaining part of such Extension Period
covered by such *
2. DEFINITIONS
In the Agreement (including each Transaction Document and the Supplement and
Schedules thereto), the following terms will have the following meanings:
Action has the meaning given in Section 17.8.
AD/M means both Applications Development and Applications
Maintenance.
AD/M Projects means the Applications Development and Applications
Maintenance performed during the Term and the
production cutover date for the corresponding Scheduled
Projects and/or each New Service added during the Term
requiring the performance of Applications Development
and Applications Maintenance by IBM.
Affected Employees has the meaning given in Section 5.2.
Affiliates means, with respect to a Party, any entity at any time
Controlling, Controlled by or under common Control with
such Party.
Agreement means this Master Agreement for Operations Support
Services Agreement and the forms of Exhibits and
Schedules referenced herein and each Transaction
Document referencing the Master Agreement for
Operations Support Services and the Supplement and
Schedules referenced therein.
Annual Service Charge has the meaning given in the Supplement and
or ASC Schedules to each Transaction Document for such
Transaction Document.
Applications Development means the programming of any new applications
software, and changes or enhancements to existing
Applications Software. Programming effort shall
include the pre and post development analysis,
planning, design, coding, testing, installation,
provision of a single set of program and training
documentation per Applications Software program
and training necessary to complete the task.
Applications Development means the pre and post development analysis,
Methodology planning, design, coding, testing, installation,
provision of a single set of program and training
documentation per Application Software program and
training necessary to complete the task.
Applications Maintenance means defect identification and provision of
fixes, and installation of those fixes and updates
for the Applications Software provided by the
Applications Software vendors as part of normal
maintenance service for the Applications Software
for which there is no charge by such vendors in
addition to periodic maintenance charges, if any,
and defect identification, provision of fixes and
installation of those fixes and updates for
Applications Software for which there is no
generally commercially available maintenance
support.
Applications Software means those programs and programming, including
all supporting documentation and media, that
perform specific user related data processing,
data management and telecommunications tasks,
including updates, enhancements, modifications,
releases and Derivative Works thereof.
Applications Software as of the Commencement Date
is listed in Schedule A to each Transaction
Document for such Transaction Document, which
Schedule shall be updated pursuant to Section 8.1
during the Term to reflect the then-current
Applications Software.
Applications Software - means the Applications Software listed on Schedule
Equifax A to each Transaction Document for such
Transaction Document under such heading, provided
or to be provided by Equifax.
Applications Software - means the Applications Software listed on Schedule
IBM A to each Transaction Document for such
Transaction Document under such heading, provided
or to be provided by IBM.
Authorized User means a person or entity authorized to use the
Services, including without limitation the System,
by Equifax.
Baseline(s) has the meaning given in Schedule J to each
Transaction Document for such Transaction
Document.
Business and Operations has the meaning given in Section 6.2(b).
Support Plan
Cable or Cabling means the wires or cables that interconnect
Machines and/or connect a Machine to a facility
connection.
Change Control Process has the meaning given in Section 6.3 of the
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Agreement.
Change of Control means the transfer of the Control of a Party, or a
sale of substantially all of the assets of a
Party, from the persons or persons who hold such
Control on the Effective Date to another person or
persons, but shall not include a transfer of the
Control of a Party to an Affiliate of such Party.
Change Request has the meaning given in Section 6.3.
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Claim has the meaning given in Section 14.5(a).
---------------
Code has the meaning given in Section 10.
----------
Commencement Date means the date set forth in each Transaction
Document for the start of the Services covered by
such Transaction Document.
Company Information has the meaning given in Section 11.1.
------------
Confidential Information has the meaning given in Section 11.1.
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Contract Year means each twelve (12) calendar month period, or
portion thereof, beginning January 1 of each
calendar year during the Term.
Control, Controlling, or means possessing, directly or indirectly, the
Controlled power to direct or cause the direction of the
management and policies of an entity through
ownership of greater than fifty (50%) percent of
the voting securities of such entity.
Cost of Living Adjustment has the meaning given in Schedule J to each
----------
("COLA") Transaction Document for such Transaction
Document.
CRF or Change Request Form has the meaning given in Section 6.3.
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Data Center means the data centers from which the Services are
provided located in the Facilities as set forth in
each Transaction Document.
Data Network means the communication facilities and components
set forth in the Schedules to each Transaction
Document that are used to transmit voice, image
and data signals and which initially consist of
the communications facilities and components used
by the Equifax Group immediately prior to the
Commencement Date to provide information
communication services to the Equifax Group,
including without limitation, all Machines,
Software, communications lines, Cabling and Wiring
used to connect and transmit information among the
Facilities and the Network Locations, but does not
include End User Machines.
Derivative Work means a work based on one or more pre-existing
works, including without limitation, a
condensation, transformation, expansion or
adaptation, which would constitute a copyright
infringement if prepared without authorization of
the owner of the copyright of such pre-existing
work.
Develop has the meaning given in Section 10.
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Direct Damages has the meaning given in Section 13.3.
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Direct Damages Caps has the meaning given in Section 13.1(b).
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* *
Disaster Recovery Center means the location designated by such name or its
equivalent in the Disaster Recovery plan
referenced in Schedule G to each Transaction
----------
Document for such Transaction Document.
Disaster Recovery Services means the Disaster Recovery services described in
Schedule G to each Transaction Document for such
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Transaction Document.
Effective Date means the date set forth on the initial page of
the Master Agreement.
End User Machines means all work stations, terminals, printers, fax
machines, and associated peripheral equipment used
by end users and described in a Schedule to each
Transaction Document for such Transaction
Document, whether stationary or mobile equipment
used by end users, but does not include the work
stations being used by IBM personnel in connection
with the scheduled Projects or the Equifax
Provided Hardware located in the Data Center.
Elements of the Services has the meaning given in Section 17.15.
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Equifax Business means the businesses engaged in by the Equifax
Group.
Equifax Code means Code Developed by IBM and/or its
subcontractors independently or jointly with the
Equifax Group and/or their contractors, as part of
the Services. Equifax Code shall not include any
IBM Derivative Code.
Equifax Direct Damages Cap has the meaning given in Section 13.1(b).
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Equifax Derivative Code means Developed Code, which constitutes Derivative
Work of software for which the copyright is owned
by the Equifax Group and/or their contractors.
Equifax Group means individually and collectively Equifax and
its existing and future Affiliates that are using
and/or receiving any portion of the Services.
Equifax In-Scope Operations means all functions, responsibilities, tasks and
activities that are described in the Agreement and
each Transaction Document (including the
Supplement and Schedules thereto) that are to be
performed by IBM under the Agreement, including,
without limitation, those performed for the
Equifax Group by the Affected Employees that are
directly related to information technology
services under each Transaction Document before
they entered the employ of IBM and/or its
Affiliates and subcontractors and those performed
by IBM and/or its Affiliates for Equifax and/or
its Affiliates immediately prior to the
Commencement Date under any Transaction Document
or agreement with IBM comprised of or directly
related to the information technology services
under such Transaction Document and otherwise
within the scope of the prior Transaction Document
or agreement between Equifax and IBM pursuant to
which such services were performed unless
specifically deleted or otherwise described
(versus not described) in the new Transaction
Document.
Equifax LAN Software has the meaning given in Schedule A to each
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Transaction Document for such Transaction
Document.
Equifax Provided Hardware means the computer equipment peripheral devices,
storage media, Cabling, connectors, the Data
Network, the LAN, telephone equipment and other
equipment (however described) provided from time
to time by the Equifax Group for use by IBM to
perform and deliver the Services and fulfill its
obligations under the Agreement. The Equifax
Provided Hardware as of the Commencement Date is
listed on and/or referred to in Schedule C to each
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Transaction Document for such Transaction
Document, which schedule shall be updated pursuant
to Section 8.1 during the Term to reflect the then
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- vcurrent Equifax Provided Hardware.
Equifax Provided Office means the desks, chairs, filing cabinets, office
Furnishings cube partitions and other office furniture
(however described) provided from time to time by
the Equifax Group for use by IBM to perform and
deliver the Services and fulfill its obligations
under the Agreement. The Equifax Provided Office
Furnishings as of the Commencement Date are listed
on and/or referred to in Schedule T to each
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Transaction Document for such Transaction
Document, which schedule shall be updated pursuant
to Section 8.1 during the Term to reflect the then
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- current Equifax Provided Office Furnishings.
Equifax Server shall have the meaning given in a Schedule to
Configurations each Transaction Document for such Transaction
Document.
Equifax Software means Applications Software-Equifax, Systems
Software-Equifax and Equifax LAN Software.
Equifax Works means literary works of authorship (other than
Code) Developed by IBM and/or its subcontractors
independently or jointly with the Equifax Group
and/or its contractors under the Agreement,
specifically for the Equifax Group or the Equifax
Business or specifically for the purpose of
providing the Services, including without
limitation user manuals, charts, graphs and other
written documentation, and machine-readable text
and files, but shall not include any Derivative
Works of any works in which the copyright is owned
by IBM, its Affiliates or subcontractors.
Equifax/IBM Integrated has the meaning given in Section 6.1.
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Planning Team
Execution Date has the meaning given in Section 8.3(c).
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Extension Period has the meaning given in Section 1.4
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Facilities has the meaning given in a Schedule to each
Transaction Document for such Transaction
Document.
Force Majeure Event has the meaning given in Section 17.3(a).
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Help Desk means the IBM help desk which is staffed by IBM to
provide support to Equifax as described in
Schedule M to each Transaction Document for such
----------
Transaction Document.
IBM Code means Code Developed by IBM personnel at IBM's
expense and not as part of the Services, but used
to provide the Services, which code does not
constitute a Derivative Work of any software owned
by the Equifax Group, IBM, or their respective
Affiliates or contractors or subcontractors. IBM
Code shall not include any Equifax Derivative
Code.
IBM Derivative Code means Code Developed under the Agreement, which
constitutes Derivative Works of software for which
the copyright is owned by IBM, its Affiliates or
its subcontractors.
IBM Direct Damages Cap has the meaning given in Section 13.1(a)(i).
IBM Indemnitees has the meaning given in Section 14.2.
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IBM Interfaces means Code and/or literary works of authorship
created at IBM's expense, by IBM personnel and/or
its contractors and not as part of the Services,
but used to provide the Services, and interface or
describe and instruct regarding the interface,
between and among Applications Software and the
Systems Software, which does not constitute a
Derivative Work of any software or literary works
of authorship owned by the Equifax Group, IBM, or
their respective Affiliates or contractors,
including without limitation, user manuals,
charts, graphs and other written documentation,
and machine-readable text and files.
IBM LAN Software has the meaning given in Schedules A and B.
------------------
IBM Logo Products has the meaning given in Section 4.7.
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IBM Machines means the computer equipment, peripheral devices,
storage media, cabling, connectors, extenders and
other equipment (however described) including
without limitation, modems, routers and termination
boxes for the Network located in the Facilities and
other Equifax Group Sites, including without
limitation Data Center and at the Network
Locations, provided by or through and used from
time to time by IBM to perform and deliver the
Services and fulfill its obligations under the
Agreement. The IBM Machines as of the Commencement
Date are listed on Schedule D to each Transaction
----------
Document for such Transaction Document, which
schedule shall be updated pursuant to Section 8.1
-----------
during the Term to reflect the then current IBM
Machines.
IBM Software means the Applications Software-IBM, Systems
Software-IBM and IBM LAN Software.
* *
IBM Works means literary works of authorship (other than
Code) Developed at IBM's expense, by IBM personnel
and/or its contractors and not specifically for the
Equifax Group or the Equifax Business or not
specifically for the purpose of providing the
Services, but used to provide the Services,
including without limitation user manuals, charts,
graphs and other written documentation and machine-
readable text and files, but shall not include any
Derivative Works of any works in which the
copyright is owned by Equifax or its Affiliates or
subcontractors.
Indemnified Party has the meaning given in Section 14.4.
------------
Indemnifying Party has the meaning given in Section 14.5(a).
---------------
Indemnitee has the meaning given in Section 14.1.
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Installations, Moves, Adds "Installation" means the installation of circuits,
and Changes or (IMACs) network hardware and software and network end-user
equipment at any Authorized User location, *
"Move" means the physical disconnection of network
equipment and services and, in some cases, the
relocation to another site. In most cases, this
activity is coordinated with outside vendors, such
as telephone company representatives. *
Recording of assets by decal and serial number *
"Add" means the process of adding, expanding and
possibly reconfiguring network systems. This may
involve circuits, circuit speeds or network
equipment. In some cases, network software would be
affected *. "Change" means the process of
altering an existing network system or environment
and could include network software upgrades and
system or technology enhancements. The change could
be implemented by IBM or a third-party vendor, *.
Integrated Planning Team means the team composed of the individuals
or "IPT" specified in Section 6.
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Key Employees means those employees agreed by Equifax and IBM
to be key employees pursuant to each Transaction
Document and identified in Schedule V thereto.
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Level One Support has the meaning given in a Schedule to each
Transaction Document for such Transaction Document.
Level Three Support has the meaning given in a Schedule to each
Transaction Document for such Transaction Document.
Level Two Support has the meaning given in a Schedule to each
Transaction Document for such Transaction Document.
Listed Subcontractors has the meaning given in Section 8.6(a).
--------------
Local Area Network (LAN) means all communications equipment and components
that are used to transmit voice, image and data
signals within a local area network and which
initially consist of the communications facilities
and components in use by Equifax immediately prior
to the Commencement Date to provide local area
network communications facilities to the Equifax
Group as described in Schedule I to each
----------
Transaction Document for such Transaction Document,
including without limitation the associated
attachments, peripherals, features, software and
accessories, communications lines and Cabling,
including the wiring systems, at the locations
specified in such Schedule.
Losses means all losses, liabilities, damages, penalties
and claims (including taxes and all related
interest and penalties incurred directly with
respect thereto), and all related costs, expenses
and other charges (including all reasonable
attorneys' fees and reasonable costs of
investigation, litigation, settlement, judgment,
interest and penalties).
Machines means the IBM Machines and Equifax Provided
Hardware.
* means those Software fixes and updates provided by
the Software vendors as part of normal maintenance
service for the Software for which there is no
charge by such vendors in addition to periodic
maintenance charges, if any.
Materials means the Equifax Code, the Equifax Derivative
Code, the Equifax Works, the IBM Code, the IBM
Derivative Code, the IBM Works and the IBM
Interfaces.
* has the meaning given in Schedule S to each
----------
Transaction Document for such Transaction Document.
Monthly Charge has the meaning given in Schedule J to each
----------
Transaction Document for such Transaction Document.
Network means the Data Network, Local Area Network and
Voice Services.
Network Locations has the meaning given in Schedule I to each
----------
Transaction Document for such Transaction Document.
Network Vendors means any third parties providing information
communication services to Equifax which are
accessed or will be accessed through the Network.
New Services has the meaning given in Section 3.12.
-------------
Notice has the meaning given in Section 16.1(b)
---------------
Other Products has the meaning given in Section 4.5(c).
--------------
Parties means IBM and Equifax as detailed on the initial
page of the Agreement.
Party means IBM or Equifax as detailed on the initial
page of the Agreement.
* means the service levels and performance
responsibilities under which the Services will be
provided. The * are described in Schedule S to each
Transaction Document for such Transaction Document.
* *
Poll means to electronically connect the Facilities to
the other Equifax Group sites to retrieve data,
perform downloads/updates and/or execute remote
diagnostics.
Project means the portion of the Services described in
Schedule N to each Transaction Document.
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Project Executive has the meaning given in Section 7.1.
-----------
Required Consents means any consents or approvals required to be
obtained (a) to allow IBM and its subcontractors to
assume financial and/or support, operational,
management and administrative responsibility for
the Equifax Software, the Equifax Provided Hardware
and the Equifax Provided Office Furnishings in
connection with the Services; (b) for the
licensing, transfer and/or grant of the right to
the Equifax Group to use the IBM Software and IBM
Machines as contemplated by the Agreement; and (c)
for the Equifax Group and IBM and its
subcontractors to have access to and use of the
space, equipment, software and/or third party
services provided under the Third Party Agreements
in connection with the Services as contemplated by
the Agreement.
Resource Unit ("RU") has the meaning given in Schedule E to each
----------
Transaction Document for such Transaction Document.
* *
Service Employees has the meaning given in Section 12.6(g).
---------------
Services means the Equifax In-Scope Operations, including,
without limitation, any migration of the Equifax
In-Scope Operations from the Equifax Group to IBM
pursuant to a Transaction Document.
Services Transfer has the meaning given in Section 12.5.
Assistance ------------
* *
Software means IBM Software and Equifax Software.
Supplement means the Supplement to each Transaction Document
containing the charges and certain other necessary
information.
System means the Machines, Software and Network covered
under the Agreement and the operating environment
therefor.
Systems Software means those programs and programming (including all
supporting documentation and media) that perform
tasks related to the functioning of the data
processing, and telecommunication equipment which
is used to operate the Applications Software or
otherwise to support the provision of the Services
by IBM under the Agreement, whether or not licensed
to IBM. Systems Software may include but is not
limited to, database creation and management
software, application development tools, operating
systems, software utilities, data security
software, data network software, communications
monitors and data base managers. Systems Software
as of the Commencement Date is listed in Schedule B
----------
to each Transaction Document for such Transaction
Document, which schedule shall be updated pursuant
to Section 8.1 during the Term to reflect the then
-----------
current Systems Software.
Systems Software - Equifax means the systems software and general purpose
software such as the database creation and
management software, utility software and
applications development tools software listed in
Schedule B to each Transaction Document for such
----------
Transaction Document under such heading provided or
to be provided by Equifax.
Systems Software-IBM means Systems Software listed in Schedule B to each
----------
Transaction Document for such Transaction Document
under the heading "Systems Software-IBM", provided
or to be provided by IBM.
Systems Software means defect identification and fixes, and
Maintenance installation of those fixes and updates provided by
software vendors as part of normal maintenance
service for Systems Software for which there is no
charge by such vendor in addition to periodic
maintenance charges, if any, and, subject to
Section 3.9 defect identification, provision of
-----------
fixes and installation of those fixes and updates
for Systems Software used by IBM to provide the
Services for which there is no generally
commercially available maintenance and support.
Term has the meaning given in Section 1.3 and any
-----------
extension and renewal term described in the
Agreement.
Termination Charge means the amount set forth in a Supplement to a
Transaction Document.
Third Party Agreements means those contractual, leasing and licensing
arrangements for which IBM has undertaken
financial, management and/or administrative
responsibility and pursuant to which a member of
the Equifax Group receives any third party
products, software and/or services in connection
with the provision of the Services. Third Party
Agreements to which one or more members of the
Equifax Group is a party are listed on Schedule F
----------
to each Transaction Document for such Transaction
Document, which schedule shall be updated pursuant
to Section 8.1 during the Term to reflect the then-
-----------
current Third Party Agreements.
Third Party Provider means a business or entity other than a member of
the Equifax Group or IBM that provides products,
software and/or services under a Third Party
Agreement, in support of the provision of the
Services by IBM.
Tower has the meaning given in Section 1.2(a).
--------------
Trade Secrets has the meaning given in Section 11.1
------------
Transaction Document means each document executed by IBM with Equifax
pursuant to the Agreement, providing for the
performance and delivery of a portion of the
Services to a specific site or group of sites with
respect to one or more of the Towers. Such document
will be in the form of Exhibit 3 and structured as
---------
described in Exhibit 2.
---------
* *
Transition Costs means the costs incurred and profit charged by IBM
on such costs to transition into a Transaction
Document Services arrangement. Such costs do not
include the costs of hardware or software to
provide the on-going Services.
Transition Period has the meaning given in Section 5.1(a).
--------------
Transition Personnel has the meaning given in Section 5.1(b).
--------------
Transition Plan has the meaning given in Section 5.1(a).
--------------
Unplanned Resource Unit has the meaning given in Schedule J to each
----------
Transaction Document.
Version means those Software updates that generally add
function to the existing Software and may be
provided by the Software vendors at a fee over and
above the standard periodic software maintenance
costs.
* *
Voice Equipment means PBXs and Key Systems (AT&T and non-AT&T),
telephony switches, key systems, telephone sets,
voice mail equipment, voice response units and
associated software and equipment performing
similar functions.
Voice Services means all Voice Equipment and associated
controllers, channel banks, carrier services (e.g.,
VNET), lines and Cabling, together with all
software related thereto, used to transmit voice
traffic within or outside of Equifax locations, but
does not include the Data Network.
Wind-Down Expenses means the net amount, after IBM takes commercially
reasonable action to * that will reimburse IBM
for the actual reasonable costs that IBM incurs in
* in the event of a termination occurring
prior to the expiration of the Term or the term of
any Transaction Document; provided, however,
Equifax shall have the right to *
Wiring means those cables or wires that are internal to
the building structure and that interconnect
machines within the same building or between
buildings.
* *
* *
3. THE SERVICES
3.1 Obligation to Provide Services
a) Starting on the Commencement Date of each Transaction Document and
continuing during the term of each Transaction Document, IBM shall provide
the Services to, and perform the Services for, the Equifax Group.
b) In performing and providing the Services, the relationship of IBM with the
members of the Equifax Group will be as an independent contractor. However,
as a result of its position in providing and performing the Services, the
Parties acknowledge that certain employees of IBM and each of its
Affiliates providing portions of the Services may have a unique knowledge
of the information technology operations of the members of the Equifax
Group that no employee of a member of the Equifax Group will have in full,
and employees of IBM and each of its Affiliates providing portions of the
Services will be interacting with the employees, executive management and
accountants to the Equifax Group and the members thereof, and will be
performing functions that would otherwise be performed by employees of the
Equifax Group.
c) There may be * (including the Transaction Documents and the Supplements
and Schedules thereto) which are * and are * . If such * are
determined to be * or are * the Services, *. Each such determination
shall be made by agreement of the Parties or resolved pursuant to the
dispute resolution provisions of Section 16.
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3.2 PERFORMANCE
a) IBM agrees that the performance of the Services covered by each Transaction
Document will * subject to the limitations and in accordance with the
provisions set forth in the Agreement.
b) Concurrent with the semi-annual Business and Operations Support Plan review
process described in Sections 6.1 and 6.2 and more often if requested by
------------ ---
Equifax, Equifax and IBM will review and agree to commercially reasonable
changes, modifications, deletions and replacements of and additions to the
* under each Transaction Document for the purposes of better and more
timely reflecting, facilitating and supporting the continuing development,
and evolving priorities of the Equifax Group and the Equifax Business. Any
such changes will be implemented through the Change Control Process. The
* shall not be changed, modified or adjusted downward or upward without
the prior written agreement of the Parties. The Parties intend that the
* will be * . The Parties agree to cooperate and deal with each other in
good faith to promptly resolve on a reasonable basis in consonance with the
purposes of the review process, any differences between the Parties
regarding appropriate changes to, modifications of, additions to, deletions
of and replacements of the *
c) IBM will continue to use the existing measurement and monitoring tools and
procedures to set Resource Unit Baseline measurements and to measure and
report IBM's performance of the Services. * Subject to Equifax's prior
approval (which approval shall not be unreasonably withheld), IBM shall
implement the necessary measurement and monitoring tools and procedures
required to set Resource Unit Baseline measurements and to measure and
report IBM's performance of the Services * may be developed, modified and
changed during the term of each Transaction Document and as the Services
may evolve and be supplemented and enhanced during the Term. Such
measurement and monitoring shall permit reporting at a reasonable level of
detail sufficient to verify compliance with * and application of any *
IBM shall prepare and maintain detailed records regarding its compliance
with the and the determination and application of. * Upon request, IBM
shall provide Equifax with information and reasonable access to such tools
and procedures, and the records relating thereto, for purposes of
verification of the reported performance levels.
3.3 DISASTER RECOVERY SERVICES
IBM will provide Disaster Recovery Services under each Transaction Document in
accordance with Schedule G to each Transaction Document. If IBM fails to
----------
provide Disaster Recovery Services to the extent and in accordance with the time
table set forth in such Schedule for a period as set forth in Schedule G to each
----------
Transaction Document, Equifax will be entitled, at its election * upon
written notice to IBM. If Equifax elects to * Equifax shall give notice
to IBM of such election within thirty (30) days after the occurrence of the
event on which. * In the event of * is authorized under this Section
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3.3, Equifax shall not be required to * any * or * to IBM. Such * shall
---
not constitute the sole and exclusive remedy of Equifax for such failure of
performance by IBM.
3.4 AUDITS
a) IBM will assist the Equifax Group in meeting their respective audit and
regulatory requirements, including providing access to * to enable the
Equifax Group and its auditors and examiners to conduct appropriate audits
and examinations of the Equifax Group's operations and IBM's operations
relating to the performance of the Services, and to verify the accuracy of
IBM's charges and credits to Equifax and that the Services are being
provided in accordance with the Agreement * provided, however, that
neither Equifax nor its auditors will be allowed access to other IBM or IBM
Affiliates customers' records or IBM confidential and proprietary data; but
provided further that nothing in the Agreement shall limit or restrict
Equifax's or IBM's rights in discovery proceedings pursuant to any civil
litigation. Such access will require forty-eight (48) hour written notice
to IBM and will be provided at reasonable hours. If any audit or
examination reveals that IBM's invoices for the audited period are not
correct (other than amounts in dispute pursuant to Section 9.12), IBM
------------
shall promptly reimburse Equifax for the amount of any overcharges, or
Equifax shall promptly pay IBM for the amount of any undercharges. If any
such audit activities interfere with IBM's ability to perform the Services
* under any Transaction Document, IBM shall be relieved of such
performance obligations under such Transaction Document to the extent
caused by such audit activity. If the assistance required of IBM shall
cause IBM to expend resources and incur additional costs to provide such
assistance that are not within the scope of the Services and Resource Unit
Baselines, Equifax shall reimburse IBM for such costs.
b) Subject to Section 4.6, IBM agrees to make any changes to the Services and
-----------
take other actions which are necessary in order to maintain compliance with
laws or regulations applicable to its performance and provision of the
Services. Subject to Section 4.6, Equifax may submit to IBM findings and
-----------
recommendations regarding changes to the Services necessary for the
compliance by Equifax with applicable laws and regulations which IBM will
analyze and consider in good faith. IBM shall promptly respond to Equifax
regarding IBM's evaluation and activity plan for such findings and
recommendations.
3.5 FACILITIES AND DATA CENTER
a) IBM will not * as set forth in each Transaction Document without the
prior written consent of Equifax as described in Section 5.3(d).
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b) During the Term, IBM will provide the Equifax Group with access upon prior
notice to * in order for Equifax to * and such * will be conducted in
a manner reasonably calculated not to interfere with IBM's provision of
Services.
c) IBM will provide reasonable access to * as necessary or appropriate for
the performance, delivery and use of the Services by the Equifax Group and
for the operation, maintenance, upgrade, support and use of any other
Equifax hardware, software and other resources * (i) to the Equifax
Group's authorized employees, agents and representatives, and (ii) * of
installation, maintenance, support and upgrade services, technology and
hardware for the System and any other Equifax hardware, software and other
resources located in the Facilities including the Data Center serviced
thereby. To the extent practical in light of such installation,
maintenance, support and upgrade requirements, Equifax will provide *
notice to IBM prior to any *
d) All access to * shall be subject to (i) reasonable data and records
protection and physical security measures (including Equifax physical
security requirements) and (ii) such Equifax Group employees, agents and
representatives * undertaking reasonable confidentiality requirements
relating to such visits.
3.6 SECURITY
Equifax will authorize all access to all Software operated by, and Company
Information and other records of the Equifax Group in the possession of, IBM in
support of the Services covered by each Transaction Document through the data
and records security procedures as described in Schedule L to such Transaction
----------
Document. IBM shall notify Equifax of the identity of each of the entities and
personnel working with IBM to provide and perform the Services covered by each
Transaction Document that are to be authorized access to the Software utilized
in support of the Services covered by such Transaction Document and the level of
security access required by each. The Parties shall cooperate in administering
security procedures regarding such access, in accordance with such Schedule.
IBM will enable such access by persons as designated by Equifax and deny such
access to all other persons, in accordance with such Schedule.
3.7 TECHNOLOGY REFRESH
IBM will refresh the information technologies components of the Services
(including both hardware and software components) as specifically provided in
the Agreement (including each Transaction Document). This Section 3.7 shall not
-----------
affect or limit IBM's obligations or authority to perform the repair,
maintenance and upgrade functions and services as set forth in the Agreement.
3.8 SOFTWARE LICENSES
a) IBM will comply with all license obligations under all licenses and
maintenance agreements for the Software, including without limitation, the
obligations of nondisclosure and scope of use; provided, however, IBM will
only be obligated under this Section 3.8(a) with regard to the licenses and
--------------
maintenance agreements for Equifax Software to the extent the obligations
thereunder are disclosed to and accepted by IBM. To the extent provided to
IBM by Equifax prior to execution of each Transaction Document, IBM shall
be deemed to have reviewed and accepted the obligations under the licenses
and maintenance agreements for the Equifax Software listed on Schedules to
such Transaction Document as of the Commencement Date under such
Transaction Document, unless otherwise noted in such Transaction Document.
b) All IBM Software provided by IBM in connection with the Services and any
Equifax Software licensed under a Third Party Agreement shall be licensed
(and the attendant maintenance arrangements contracted) in the name of the
Equifax Group member designated by Equifax as the licensee with IBM having
the right to access and use such Software in performing the Services,
unless IBM can procure such Software (and/or attendant maintenance
arrangement) on a more cost effective basis licensed in its own name.
c) IBM shall use commercially reasonable efforts to obtain * for the
Software licensed and contracted in IBM's name as licensee to Equifax upon
termination or expiration of the Agreement and as applicable, each
Transaction
Document. If IBM is unable to obtain * the rights described in the
immediately preceding sentence, and, in any event, prior to (i) the
addition to the IBM Software of any software which is not listed in
Schedules to a Transaction Document for the Equifax operations covered by
such Transaction Document; or (ii) any upgrade, enhancement or modification
of any IBM Software listed in Schedules to a Transaction Document for the
Equifax operations covered by such Transaction Document, IBM shall (A)
obtain Equifax's prior written consent for any such actions, (B) provide
Equifax with information regarding * for such IBM Software upon the
expiration or termination of the Agreement and as applicable, each
Transaction Document, and (C) use commercially reasonable efforts to obtain
* upon the expiration or termination of the Agreement upon the * of
such requirements. If Equifax does not respond to a request for consent
from IBM within * of receipt of such request together with the
information and confirmation of the actions required of IBM in this Section
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3.8(c), Equifax shall be deemed to have granted its consent to the actions
------
for which IBM requested consent. IBM shall consider and take into account
in the negotiation of its licensing and maintenance arrangements with
providers of the IBM Software, *
d) IBM shall not direct the Equifax Group to terminate, extend, replace, amend
or add licenses for the Software and/or the maintenance arrangements
attendant therewith, contracted in the name of a member of the Equifax
Group without notifying Equifax in writing of the proposed action by IBM
and obtaining Equifax's prior written agreement; moreover, IBM shall
provide to Equifax a written report of the reasons for, and the impact and
ramifications on the Services of, such proposed action concurrently with
such notification. IBM may terminate, replace, amend or add licensees for
the IBM Software as it chooses so long as IBM continues to perform the
Services in the manner required by the Agreement; provided, however, IBM
agrees to provide * written notification to Equifax prior to each such
termination, replacement, amendment or addition and concurrently with such
notification, deliver to Equifax a written report of the reasons for, and
the impact and ramifications on the Services of, IBM's proposed action. In
addition, if such action by IBM with respect to a license and/or
maintenance arrangement for the IBM Software will have an impact on the
Services or the monitoring and/or evaluation of the Services in a manner
that in turn will have a * on the Equifax Group or the ability of IBM or
Equifax to monitor and/or evaluate the performance and delivery of the
Services, and IBM is notified in writing by Equifax of its estimate of such
* prior to IBM's implementation of such action and IBM elects to proceed,
IBM will provide or cause to be provided the programs, services, rights and
other benefits and resources that are the subject of such licenses and
maintenance agreements to the Equifax Group on terms no less favorable than
the terms of such license and maintenance agreements and ensure that there
shall be no negative impact on the ability of IBM or Equifax to monitor
and/or evaluate the performance and delivery of the Services. If Equifax in
connection with or resulting from IBM's termination, replacement, amendment
or addition of any license for IBM Software and/or maintenance arrangement
incurs additional * or * including but not limited to * and IBM has
been notified in writing by Equifax of its estimate of such * prior to
IBM's implementation of such action and IBM elects to proceed, IBM shall
promptly * Equifax * Equifax; provided, however, that in each instance
in this Section 3.8(d) that Equifax provides IBM an estimate of the
--------------
* of an action by IBM on Equifax, the * by Equifax in
each such instance shall not * of the * provided to IBM for each such
instance.
e) IBM will provide to Equifax, and update as changes occur, a listing of all
Software by name, Maintenance Release and Version promoted into production
on each Machine at each location of the Machines.
3.9 SOFTWARE CURRENCY
The Parties agree to maintain reasonable currency for Maintenance Releases
and Versions of Software, unless Equifax requests otherwise. For purposes
of this Section, "reasonable currency" shall mean that the next Maintenance
Release or Version is installed not later than the longer of (i) * after
the date the licensor makes such Maintenance Release or Version
commercially available, or (ii) within * after the date the licensor
* which causes Equifax to be * unless such Maintenance Release or
Version * in which case *
In the event Equifax requests IBM to expedite installation of a Maintenance
Release or Version or to delay the installation of a Maintenance Release or
Version of specific Software beyond such period or requires operation and
maintenance of multiple Versions of Software, IBM shall do so, provided,
that if IBM reasonably determines that it will incur any additional costs
as a result of such requests (e.g., Software support costs due to
withdrawal of maintenance by the licensor, multiple version charges, etc.)
for resources not otherwise required to provide the Services under the
applicable Transaction Document or covered under a current Resource Unit
Baseline for such Transaction Document, then IBM will notify Equifax of the
amount of such costs in writing and Equifax, at its option, will either
delay installation of such Maintenance Release or Version or update the
Software to the current level (as applicable) or reimburse IBM for any
demonstrable costs. The installation and promotion into production of each
Maintenance Release and Version shall be performed in accordance with the
Change Control Process.
In addition, Equifax shall * to the extent directly impacted by the delay
or acceleration of the next Maintenance Release or Version until such time
as the affected Software is brought to "reasonable currency" as defined in
this Section 3.9.
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3.10 *
IBM will take commercially reasonable measures to ensure that * IBM will
continue to perform the * in place at the Equifax Group prior to the
Commencement Date of each Transaction Document, and will continue to *
that are commercially reasonable and consistent with industry standards. If
a * IBM shall * and * to * provided, however, IBM shall * if
required due to the nature or severity of * shall bear the costs
associated with such efforts. Notwithstanding any other term of this
Section 3.10, neither
------------
Party shall be liable to the other Party or any of its Affiliates for any
such costs incurred by any of them with respect to * IBM shall be
relieved of * to the extent such * impacts IBM's ability to satisfy
such *
3.11 SOFTWARE - SUBSTITUTIONS AND ADDITIONS
a) If Equifax requests a substitution of any Software under any Transaction
Document for which IBM has financial responsibility, Equifax shall * in
the * by which the * attributable to the substituted Software * or is
* the then-current * being * attributable to the Software being
replaced. If Equifax * any Software for which IBM has financial
responsibility * to a Transaction Document and does not immediately *
Equifax may utilize an * to the then-current applicable * attributable
to such * Software to * attributable to * Software or receive a *
IBM will provide Equifax with the requisite * support documentation to
assist Equifax in evaluating the decision to * Equifax will be
responsible for any other * to the Software vendor associated with such
*
b) Equifax may * the Schedules to any Transaction Document. IBM agrees *
use and operate any Software * provided, however, that any resources
(software, hardware, personnel, etc.) required to install, delete and/or
operate such added Software that is not otherwise required to provide the
Services under such Transaction Document, or covered under a current
Resource Unit Baseline for such Transaction Document, will be provided as
New Services pursuant to Sections 3.12. Equifax shall be permitted by IBM
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to * and IBM shall provide the cooperation, information and access
necessary or appropriate to permit Equifax to perform such functions.
c) If IBM timely notifies Equifax that any software requested by Equifax be
substituted for, deleted from, or added to, the Software will have an
adverse impact on the operation of the System before such action is
effected and Equifax directs IBM to effect such action even in view of such
notice * such action affects IBM's ability to *
3.12 NEW SERVICES
a) During the Term, Equifax may request IBM to perform a "New Services"
------------
(defined as an additional function, responsibility or task under any
Transaction Document that requires resources for which there is no current
Resource Unit Baseline or charging methodology under such Transaction
Document, that is, such function, responsibility or task is not included in
the Monthly Charge and is not charged separately under another methodology
other than this New Services provision). Further, Equifax's request for a
New Service may include a request for IBM to * one or more * then being
provided under the applicable Transaction Document * New Services. In
such event, IBM shall determine the * related to
the element or elements of the Services * and those required for the New
Services being added.
Promptly after receiving each request for New Services from Equifax, IBM
will provide a written quote for such New Services to Equifax setting forth
the * and * in the * and/or * under the applicable Transaction
Document, and as applicable, * in existing * and additional * if any,
that will be attributable to such New Services, and will concurrently
deliver to Equifax as a part of such quote a detailed description of and
proposal for the New Services together with a report regarding the
ramifications and impacts of such New Services on the Services under such
Transaction Document. All changes in the * and other * will be based
upon the required proportional * in * and other * applicable to the
New Services relative to the * and existing other * Upon receipt of
such quote and other documentation, Equifax may then elect to have IBM
perform the New Services, and the * and, if applicable, * and * under
such Transaction Document will be established and/or adjusted to reflect
such New Services in a written amendment to the Agreement in accordance
with Section 17.2. Notwithstanding the foregoing, nothing herein shall be
------------
deemed to obligate Equifax to obtain New Services from IBM.
b) The Parties agree that * will not be deemed to be New Services, if such
* by IBM in its sole discretion or pursuant to the
provisions of the Agreement.
3.13 AFFILIATES
If the Equifax Group acquires any additional Affiliates or other operations or
assets during the Term and desires that IBM provide the Services for such
Affiliates or other operations or assets, IBM will provide such Affiliates or
other operations or assets with Services in accordance with the Agreement,
subject to additional charges if acceptance of such responsibilities by IBM
would require usage of Baseline Resources in excess of the Baseline Resources
set forth in the Agreement or additional charges if acceptance of such
responsibilities by IBM would require the performance of New Services as
described in Section 3.12.
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4. WARRANTIES/REPRESENTATIONS/COVENANTS
4.1 Work Standards
IBM warrants, represents and covenants that * the Services will be performed
for the Equifax Group in a * workmanlike manner in accordance with industry
standards applicable to the performance of such services.
4.2 NONINFRINGEMENT
Each of the Parties covenants that it will perform its responsibilities under
the Agreement in a manner that does not infringe, or constitute an infringement
or misappropriation of, any patent, trade secret, copyright or other proprietary
right of any third party. Notwithstanding this provision or any other provision
in the Agreement, Equifax makes no warranty or representation with respect to
any claims for such infringement or misappropriation by virtue of * provided,
however, that this Section 4.2 shall not relieve Equifax from any liability or
-----------
obligation under Sections 8.2 and 14.2.
------------ ----
4.3 *
IBM covenants that IBM will take commercially reasonable steps to * IBM
further covenants that with respect to any * IBM will not knowingly *
including upon expiration or termination of the Agreement or any Transaction
Document for any reason, without Equifax's prior written consent.
4.4 AUTHORIZATION AND ENFORCEABILITY
Each Party hereby represents and warrants that:
a) it has all requisite corporate power and authority to enter, and fully
perform pursuant to, into the Agreement;
b) the execution, delivery and performance of the Agreement and the
consummation of the transactions contemplated hereby have been duly and
properly authorized by all requisite corporate action on its part; and
c) the Agreement has been duly executed and delivered by such Party.
4.5 DISCLAIMER
a) IBM does not warrant the accuracy of any advice, report, data or other
product delivered to Equifax to the extent any inaccuracies are caused by
data and/or software provided by Equifax. Such products are delivered AS
IS, and IBM shall not be liable for any inaccuracy therein. IBM will
promptly notify Equifax of any such inaccuracies of which IBM becomes aware
and the cause therefore if known by IBM. *
b) * IBM does not assure uninterrupted or error-free operations of the
Software and Machines.
c) Except as set forth in a Transaction Document, IBM is not providing any
Year 2000 Services under the Agreement. IBM shall not be responsible for
its failure to perform any of its obligations (including, for example,
failure to meet * under the Agreement, if such failure is the result of the
inability of
1) Equifax's,
2) a third party's or
3) IBM's products installed prior to the Execution Date of a Transaction
Document
(for example, software, hardware or firmware) ("Other Products") to
--------------
correctly exchange, process and handle date data (including, but not
limited to, calculating, comparing and sequencing) within, from, into and
between the twentieth and twenty-first centuries, and the years 1999 and
2000, including leap year calculations.
d) IBM assumes no responsibilities or obligations to cause products or
deliverables provided by IBM to accurately exchange date data with Other
Products or to cause Other Products to accurately exchange date data with
products or deliverables provided by IBM.
e) EXCEPT AS PROVIDED IN THE AGREEMENT, THERE ARE NO OTHER EXPRESS WARRANTIES
OR COVENANTS, AND THERE ARE NO IMPLIED WARRANTIES OR COVENANTS, INCLUDING,
BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR COVENANTS OF MERCHANTABILITY
AND FITNESS FOR A PARTICULAR PURPOSE.
4.6 Regulatory Proceedings and Compliance with Laws
Each Party agrees at its cost and expense to obtain all necessary regulatory
approvals applicable to its business, to obtain any necessary permits for its
business, and to comply with all laws and regulatory requirements applicable to
the performance of its obligations under the Agreement.
4.7 *
*
4.8 COVENANT OF COOPERATION AND GOOD FAITH
The Parties covenant to timely and diligently cooperate, with due consideration
of the goals, objectives and purposes of the Agreement, to facilitate the
performance of their respective duties and obligations under the Agreement in a
commercially reasonable manner. Further, the Parties agree to deal and
negotiate with each other and their respective Affiliates in good faith in the
execution and implementation of their duties and obligations under the
Agreement.
5. TRANSITION
5.1 Transition Plan
a) Prior to the Commencement Date for each Transaction Document or such other
date as the Parties may agree, IBM and Equifax through the Equifax/IBM
Integrated Planning Team will have developed and agreed upon the
"Transition Plan" set forth in Schedule H to such Transaction Document,
----------
describing (i) the transition from the Equifax Group to IBM or its
Affiliate of the Affected Employees, if any; (ii) the transition of the
administration, management, operation under and financial responsibility
for the
Third Party Agreements from the Equifax Group to IBM or its Affiliate; and
(iii) the transition of the performance of and responsibility for the other
functions, responsibilities and tasks currently performed by the Equifax
Group to IBM or its Affiliate which comprise the Services covered by such
Transaction Document. The Transition Plan shall be implemented and
completed over a mutually agreed period as set forth in the Transition Plan
starting on the Commencement Date, which period shall not extend beyond a
date certain set forth in such Transaction Document, without the prior
written agreement of the Parties (the "Transition Period").
-----------------
Notwithstanding the foregoing in this Section 5.1(a), IBM's and Equifax's
--------------
responsibilities and obligations with respect to the Affected Employees,
the Third Party Agreements and the other elements of the Services as set
forth in the Agreement shall commence on the dates set forth in such
Transaction Document, or if no date is set forth in such Transaction
Document, the Commencement Date under such Transaction Document.
b) During the Transition Period, Equifax will cooperate with IBM in
implementing the Transition Plan by providing the personnel (or portions of
the time of the personnel) set forth in the Transition Plan ("Transition
----------
Personnel") and performing the tasks described for Equifax in the
---------
Transition Plan. During the Transition Period, IBM will be responsible for
the provision of the Services set forth in each Transaction Document
(including within those Services the implementation of the Transition
Plan).
5.2 AFFECTED EMPLOYEES
The Equifax Group may eliminate certain of the positions within the Equifax
Group associated with the Equifax In-Scope Operations commencing on the
Commencement Date under any Transaction Document and through the end of the
Transition Period under such Transaction Document. IBM will, with Equifax's
consent, * each of the individuals listed on Schedule O to such Transaction
----------
Document, in accordance with the employment guidelines set forth on such
Schedule (the "Affected Employees"). All costs and expenses incurred by IBM in
------------------
connection with the offer to employ and the employment of the Affected Employees
shall be the responsibility of IBM. IBM will * with respect to each Affected
Employee after the Commencement Date for the period until they receive offers
and reject such offers, become IBM employees, or IBM determines not to offer
employment to an Affected Employee in accordance with its employment guidelines
and notifies Equifax in writing of such determination.
5.3 RESOURCES AND FACILITIES
a) To enable IBM to provide the Services, the Parties may agree under a
Transaction Document for Equifax to provide, at no charge to IBM, the use
of the Equifax Provided Hardware, Equifax Provided Office Furnishings,
Equifax facilities, and offices services such as reasonable local analog
telephone services for the sole purpose of providing and performing the
Services covered by the Transaction Document for the Equifax Group. *
All such items provided by Equifax shall comply with all applicable laws
and regulations relating to safety and use. Subject to the satisfaction of
Equifax's obligation with respect to compliance with applicable laws and
regulations, IBM shall ensure a safe working environment is maintained with
the Equifax Provided Hardware, Equifax Provided Office Furnishings and
Equifax facilities in compliance with all applicable laws and regulations,
and shall take no action that will compromise such safety of such working
environment or violate such laws and regulations.
When the Parties agree that the Equifax Provided Hardware and Equifax
Provided Office Furnishings are no longer deemed necessary to perform the
Services, Equifax's obligations set forth in this Section and in any
Transaction Document with respect to each such item of resources shall
terminate.
b) Except as otherwise provided in the Agreement, * the responsibility and
obligation to provide and administer, manage, support, maintain and pay for
all resources (including, without limitation, personnel, hardware,
software, facilities, services and other items, however described)
necessary or appropriate for IBM to provide, perform and deliver the
Services as described in the Agreement.
c) IBM will provide and have on site as set forth in each Transaction Document
its Project Executive under each such Transaction Document prior to the
Commencement Date and for the duration of the term of each such Transaction
Document, and will timely provide additional trained and qualified
personnel as necessary or appropriate to facilitate and ensure the timely
and proper definition, provision, performance and delivery of the Services
in accordance with the Agreement.
d) IBM will have the right to change the location of the IBM activities
associated with the Services under any Transaction Document * and upon
the occurrence of a Force Majeure Event. * whether any and all changes
in the location * of such IBM activities may result *
6. INTEGRATED PLANNING TEAM/CHANGE CONTROL PROCESS
6.1 EQUIFAX/IBM INTEGRATED PLANNING TEAM
a) The Parties shall form and participate in an Integrated Planning Team in
accordance with the provisions of this Section 6 for the following
---------
purposes:
(i) to provide leadership and direction for the relationship over the
Term;
(ii) to define and forecast the resources required to be allocated by IBM
to perform and deliver the Services pursuant to the procedures and
processes for the preparation and update of the "Business and
Operations Support Plan";
(iii) to define and evaluate the objectives, substance, repricing and
performance of the Services and pricing of new and replacement
services;
(iv) to provide second level issue resolution for matters that the line
managers are unable to resolve; and
(v) to report to Equifax and IBM regarding each of the foregoing areas.
b) The Integrated Planning Team will be comprised of dedicated staffs from
both Parties, representing technology and business management from multiple
geographic locations, as provided in Exhibit 3 and
---------
each Transaction Document. The Integrated Planning Team will be co-chaired
by Equifax's Senior Vice President - North American Technology and IBM's
Senior Project Executive through the first year of the Term and then the
Integrated Planning Team shall be co-chaired as mutually agreed by the
Parties thereafter. The "Charter and Operating Procedures Guidelines" for
the Integrated Planning Team are set forth in Exhibit 3 and may be modified
---------
by the Parties from time to time during the Term upon agreement.
6.2 REPORTS/PROJECTIONS/PLANS
a) Prior to the Execution Date of each Transaction Document, IBM will provide
Equifax a plan showing the * that are included in the Annual Services
Charge and reflected in the Baselines. Such plan will be updated
whenever there is * or the addition or replacement of Services under such
Transaction Document through New Services pursuant to Section 3.12 herein.
Charges and credits with respect to the acceleration, delay or cancellation
of * are handled by the charging/credit and pricing adjustment processes
set forth in this Agreement, Annual Services Charge adjustments, the
Transaction Document and its Schedules (e.g., Baseline Adjustment, ARCs,
RRCs, New Services, benchmarking, etc.).
b) Commencing on June 30, 1998 and on June 30 and December 31 of each year of
the Term thereafter, Equifax will provide to the Integrated Planning Team
its projected business and volume requirements for the Services for the
next * and * calendar months. Further, Equifax will provide to the
Integrated Planning Team in the first week of each calendar quarter its
forecasted business and volume requirement for the Services for the * .
The * forecast may be amended by Equifax on * prior written notice.
Within * of receipt of each such projection and amendment, IBM will
review and respond to the projections from Equifax with the technical
provision requirements that it deems necessary to satisfy the business and
volume requirements projected by Equifax. After review and acceptance by
the Integrated Planning Team, the IBM response will be incorporated into
the Business and Operations Support Plan.
c) Commencing on September 30, 1998 and on March 31 and September 30 of each
year during the Term, IBM will provide to the Integrated Planning Team the
then current Business and Operations Support Plan. The Business and
Operations Support Plan will be composed of a short-term, technical plan
covering * and any long-range, strategic plan covering * , both of
which will be driven by the Equifax Group's business goals and objectives
as reflected in the projections described in 6.2(a) above. The short-term
------
plan will include an identification of support, processes, systems,
resources and changes required by the Equifax Group, and a projected time
schedule for developing, integrating and implementing the requirements. The
long-range plan will treat the strategic aspects of the support of the
business goals and objectives of the Equifax Group as set forth in the
projections described in Section 6.2(a), including, without limitation,
--------------
flexible use of resources managed by IBM as part of the Services in support
of the Equifax Group's business priorities and strategies.
IBM will draft the Business and Operations Support Plan with Equifax's
active participation, cooperation and advice through the Integrated
Planning Team. IBM will provide input for the plan regarding industry
trends with respect to the Services and proposals with regard to the
Services for process improvements, change management, skilled development,
quality improvement, cost per Resource Unit reductions, increased
efficiency and flexibility in operations and resource utilization, and
enhance functionality. The final Business and Operations Support Plan for
each * period will be provided by IBM based on the mutual agreement of
the Parties, with any disputed matters being submitted to the dispute
resolution process set forth in Section 16. The Business and Operations
----------
Support Plan will be reviewed and updated at least semi-annually
thereafter. Any changes to the Agreement or the Services required by the
Business and Operations Support Plan will be defined, approved and
implemented in accordance with the Change Control Process set forth in
Section 6.3.
-----------
6.3 CHANGE CONTROL PROCESS
Within * after the Effective Date and for the remainder of the Term, the
Parties shall define, establish, implement, document and maintain a change
control process for activities, processes, provisions and operations under the
Agreement including each Transaction Document and to evolve the Services (the
"Change Control Process"). The purposes and objectives of the Change Control
Process are (i) to determine whether a change to the System is within the scope
of the Services or constitutes a New Service under the applicable Transaction
Documents, (ii) to prioritize all requests for changes to the System ("Change
------
Requests"), (iii) to minimize the risk of exceeding both time and cost estimates
--------
associated with the Change Requests by identifying, documenting, quantifying,
controlling, managing and communicating Change Requests and their disposition
and as applicable, implementation; and (iv) to identify the different roles,
responsibilities and actions that shall be assumed and taken by the Parties to
define and implement the changes to the System.
The Project Executives shall be the focal point for all Change Requests and
shall be responsible for promptly and diligently effecting the activities set
forth above in this Section 6.3 with respect to each Change Request.
-----------
The Change Control Process shall include, at a minimum:
a. Changes to the System may be requested by either Party. Since a
change may affect the price, schedule or other terms, both the Equifax
and IBM Project Executives must review and approve, in writing, each
Change Request before any change is implemented.
b. The Party proposing a Change Request will write a Change Request Form
("CRF"), describing the change, the rationale for the change and the
---
effect that change will have, if completed, or the impact it will
have, if rejected, on the Agreement, any Transaction Document and/or
the Services.
c. Equifax's or IBM's Project Executive, as appropriate, will review the
proposed Change Request. If accepted, the CRF will be submitted to
the other Party for review and approval. If rejected, the CRF will
be returned to the originator along with the reason for rejection.
d. All material Change Requests shall be forwarded to the Integrated
Planning Team for review and approval prior to implementation.
e. Each approved Change Request will be implemented through a written
change authorization. If any Change Request results in a change in
scope, price, or terms and conditions, then the Agreement and affected
Transaction Document including the Supplement and Schedules thereto,
will be updated to reflect the changes in scope, price or terms and
conditions, as appropriate pursuant to Section 17.2.
------------
7. SERVICES STAFFING/MANAGEMENT/ADMINISTRATION
7.1 PROJECT EXECUTIVES
a) Prior to the Commencement Date under each Transaction Document, IBM and
Equifax will each designate an individual to whom all communications to the
appointing Party may be addressed and who has the authority to act for the
appointing Party and its subcontractors in connection with all aspects of
such Transaction Document (the "Project Executive").
-----------------
b) Unless otherwise provided in a Transaction Document, IBM shall cause each
person assigned as a IBM Project Executive under each Transaction Document
to devote substantially all of his or her working time and effort in the
employ of IBM to his or her responsibilities for the provision of the
Services under such Transaction Document as required by such Transaction
Document, subject to IBM's reasonable holiday, vacation and medical leave
policies and subject to occasional, short-term, non-recurring work on other
assignments by IBM related to the Project Executive's areas of expertise.
Before the initial and each subsequent assignment of an individual to such
position, each Party shall notify the other Party of * . Each Party
agrees to discuss with the other Party any objections the other Party may
have to such assignment.
c) IBM will give Equifax at least * advance notice of a change of the
person appointed as the IBM Project Executive under each Transaction
Document, and will discuss with Equifax any objections Equifax may have to
such change. IBM shall not * the IBM Project Executive * to the
Equifax service team under any Transaction Document, nor shall IBM *
during the term of any Transaction Document, unless Equifax consents to
such * , or the IBM employee *
7.2 REPLACEMENT OF PERSONNEL
If Equifax reasonably and in good faith determines that it is not in Equifax's
best interests for any IBM or subcontractor employee to be appointed to perform
or to continue performing any of the Services, Equifax shall give IBM written
notice specifying the reasons for its position and requesting that such employee
not be appointed or be removed from the IBM or IBM subcontractor employee group
servicing Equifax and be replaced with another IBM employee or IBM subcontractor
employee. Promptly after its receipt of such a notice, IBM shall investigate
the matters set forth in the notice, discuss with Equifax the results of the
investigation, and resolve the matter in a mutually agreeable manner.
7.3 RETENTION OF EXPERIENCED PERSONNEL
If IBM fails under any Transaction Document to meet the * under any Transaction
Document persistently or continuously and if Equifax reasonably believes such
failure is attributable in whole or in part to IBM's reassignment, movement, or
other changes in the human resources allocated by IBM to the performance and
delivery of the Services pursuant to such Transaction Document or the Agreement
and/or to the IBM subcontractors assigned to the Equifax service team, Equifax
will notify IBM of such belief and the basis for such belief. Upon receipt of
such notice from Equifax, IBM (a) will promptly provide to Equifax a report
setting forth IBM's position regarding the matters raised by Equifax in its
notice; (b) will meet with Equifax to discuss the matters raised by Equifax in
its notice and IBM's positions with regard to such matters; and (c) will
promptly and diligently take commercially reasonable action to *
7.4 EFFICIENT USE OF RESOURCES
IBM shall take commercially reasonable actions (a) to efficiently administer,
manage, operate and use the resources employed by IBM to provide and perform the
Services that are chargeable to Equifax under the Agreement, and (b) to
diligently and continuously improve the performance and delivery of the Services
by IBM and the elements of the policies, processes, procedures and System that
are used by IBM to perform and deliver the Services, including, without
limitation, re-engineering, tuning, optimizing, balancing or reconfiguring the
processes, procedures and systems used to perform, deliver and track the
Services.
8. RELATIONSHIP PROTOCOLS
8.1 EVOLVING NATURE OF RELATIONSHIP
a) The Supplement and Schedules to each Transaction Document will be updated
by the Parties as necessary or appropriate from time to time during the
Term to accurately reflect the evolution of the Services and components and
elements of the Services as described therein. The preceding sentence is
not intended, nor is it authorization, to expand the scope of the Services
except as provided pursuant to Section 3.12 entitled "New Services."
------------
b) For the one hundred-eighty (180) days following the Commencement Date under
each Transaction Document, IBM and Equifax reserve the right to inventory,
validate and update any information that is reflected in or omitted from
the Transaction Document and attached Supplement and/or Schedules. If
discrepancies are detected, the Transaction Document, Supplement and/or
Schedules shall be promptly changed, modified, updated and adjusted to
correct such discrepancies upon mutual agreement, so that the Transaction
Document, Supplement and/or Schedules will be correct and accurately
reflect the Services and charges provided by IBM to Equifax Group. If
either Party disputes the existence of a discrepancy identified by the
other Party, the Parties will submit the matter to the Equifax/IBM
Integrated Planning Team for dispute resolution as specified in Section 16.
----------
c) Both Equifax and IBM agree that the Services provided * of the Equifax
Group and IBM, that the relationship memorialized by the Agreement and the
Transaction Documents * as the operating and business environment of the
Equifax Group * , and that the scope of the Services that will be
provided by IBM during the Term and corresponding fees charged by IBM *
with the written agreement of the Parties pursuant to the Change Control
Process. Therefore, the Integrated Planning Team will periodically evaluate
the business and operating strategies of each
Party and recommend * to optimize such strategies and determine the
effect that any * may have on * under the Agreement.
8.2 REQUIRED CONSENTS
a) The Equifax Group shall remain the contracting party of record for the
Third Party Agreements allocable to each Transaction Document and to which
the Equifax Group is a party on the Execution Date under each such
Transaction Document. * the responsibility for timely obtaining all
Required Consents under the Third Party Agreements allocable to a
Transaction Document and to which * is a party, except Third Party
Agreements * . IBM will provide Equifax with advice and counsel regarding
IBM's experience and agreements with the third party vendors under the
Third Party Agreements to which the Equifax Group is a party on the
Execution Date under each such Transaction Document with regard to
obtaining any Required Consents, and the benefit of any relationship of IBM
with each such third-party vendor to the extent permitted under the IBM-
third party vendor arrangement to obtain any Required Consent. *
management and administrative responsibilities for obtaining all Required
Consents under the Third Party Agreements allocable to each Transaction
Document existing on the Execution Date of each such Transaction Document,
subject to the * terms of each such Required Consent. * the
responsibility for timely obtaining all Required Consents under Third Party
Agreements allocable to a Transaction Document to which * is a party,
subject to the * terms of each such Required Consent. The provisions of
this Section shall be applicable to New Services unless otherwise provided
by the Parties in the documentation governing New Services.
b) Subject to the provisions of Section 8.3, IBM will use commercially
-----------
reasonable efforts to obtain, and will act as Equifax's attorney in fact in
connection with obtaining, any Required Consents that are both (i) *
under Section 8.2(a), and (ii) under Third Party Agreements allocable to a
Transaction Document that are * the * under such Transaction Document.
Upon obtaining a third party vendor's agreement to terms for a Required
Consent, the Required Consent shall be provided to Equifax for review,
approval, and signature. If IBM is unable to obtain the Required Consent
within a reasonable time in a form acceptable to Equifax, then the Parties'
obligations with respect to the performance of, and payment for, any
Services dependent on such Required Consent shall be determined in
accordance with the provisions of Section 8.2(e).
---------------
c) Subject to Section 8.2(d), * the costs, if any, of obtaining all Required
Consents, including without limitation, all charges and fees related to
obtaining the Required Consents for the Third Party Agreements allocable to
each Transaction Document and to which the Equifax Group is a party
existing as of the Execution Date under each such Transaction Document,
except agreements for software * by * and Third Party Agreements
relating to Systems Software, Machine maintenance and Machine leases, * the
costs of obtaining all Required Consents for the Third Party Agreements
allocable to each Transaction Document existing as of the Execution Date
under each Transaction Document and not described above as the * . For
all Third Party Agreements allocable to each Transaction Document entered
into after the Execution Date under each such Transaction Document, the *
shall bear the costs, if any, of obtaining Required Consents. In addition,
* the costs, if any, associated with the cancellation and re-licensing of
any Software allocable to a Transaction Document and licensed by the
Equifax Group prior to the Execution Date under such Transaction Document
if required for IBM to provide the Services after the Commencement Date
under
such Transaction Document, except Software * the cost, if any, associated
with the cancellation and re-licensing of any Software allocable to a
Transaction Document and licensed by the Equifax Group prior to the
Execution Date under such Transaction Document * , if required for IBM to
provide the Services after the Commencement Date under such Transaction
Document. The provisions of this Section shall be applicable to New
Services unless otherwise provided by the Parties in the documentation
governing New Services
d) Notwithstanding anything to the contrary in Section 8.2(c), * any costs
--------------
allocable to * under Section 8.2(c) provided that: (i) the costs are
--------------
incurred because the third party vendor from whom a Required Consent is
requested or who requires cancellation and re-licensing of Software has a
pre-existing policy to charge for or not grant a Required Consent or to
require cancellation and re-licensing of Software * ,(ii) the third party
vendor does not have such a policy generally with respect to * , (iii)
the policy is not limited to * , and (iv) * diligent and commercially
reasonable efforts to * the vendor * as * . In any such case, * a
functionally equivalent substitute, if available, for the product or
service provided by the third party vendor, * in good faith
implementation of such substitute product or service. No substitute product
or service will be implemented without * , which shall not be * . *
under this Section 8.2(d) shall be * by a third party vendor that are
directly attributable to such third party vendor's pre-existing policy to
charge for Required Consents or to require cancellation and relicensing of
Software * and shall not in any event include any amounts that would have
otherwise been charged by such third party vendor if another outsourcing
services provider was requesting a Required Consent or * Software.
e) Notwithstanding any other provision of the Agreement, no Services requiring
a Required Consent shall commence and no Monthly Charge or other charge
shall commence for such Services until all applicable Required Consents for
such Services are obtained, unless otherwise agreed by the Parties;
provided, however, that to the extent the Monthly Charge or other charge
includes amounts that constitute * of IBM, such amounts will be due and
payable to IBM by Equifax within a period not to exceed * following
commencement of such Services. * a list each * setting forth the
status of each Required Consent until all Required Consents are obtained. *
shall timely cooperate * in order to facilitate the proper and timely
publication of such monthly Required Consents list. Subject to the
foregoing portion of this Section 8.2(e), if any Required Consent is not
--------------
obtained with respect to any of the Third Party Agreements existing as of
the Commencement Date under any Transaction Document, and prior to the
Commencement Date, the Parties agree to commence the provision of Services
without such Required Consents, the Parties shall cooperate with each other
in achieving a reasonable alternative arrangement for Equifax to continue
to process its work with minimum interference to its business operations
unless and until such Required Consents are obtained. The * shall be * if
caused by Required Consents needed from (i) * , (ii) from the licensors
of the * , and/or (iii) from third-party vendors under any Third Party
Agreements * generally as described in Section 8.2(c), and in all other
--------------
instances *
8.3 APPOINTMENT AS ATTORNEY IN FACT
a) Equifax appoints IBM as the attorney in fact of the members of the Equifax
Group, and IBM accepts such appointment as a part of the Services, for the
limited purposes of administering, managing, supporting, operating under
and paying under the Third Party Agreements to which one or more members of
the Equifax Group is a party, and to obtain certain Required Consents as
provided in Section 8.2(b), in connection with the Services as contemplated
-------------
by the Agreement. Equifax does not appoint IBM as the attorney in fact of
the members of the Equifax Group for the purposes of entering into oral or
written agreements with any individual or business entity for or in the
name of the Equifax Group or their Affiliates, without the prior express
written approval of Equifax. Equifax agrees to promptly notify all Third
Party Providers under the Third Party Agreements to which one or more
members of the Equifax Group is a party of such appointment. Subject to
its obligation to indemnify Equifax for any applicable penalties, damages,
termination or other charges under Section 14.1, IBM may direct that the
------------
Equifax Group cancel, substitute, terminate, change or add to the Third
Party Providers under the Third Party Agreements as it chooses so long as
IBM continues to perform the Services in the manner required by the
Agreement; provided, however, IBM * prior to the cancellation,
substitution, termination, change or addition of any Third Party Agreement
to which one or more members of the Equifax Group is or will be a party.
* If any such cancellation, substitution, termination, change or
addition of a Third Party Agreement will have an impact on the operations
of users that are outside the scope of the Services and Equifax has
notified IBM prior to the expiration of * of such impact and IBM elects
to proceed, IBM will provide or cause to be provided the products and/or
services that are the subject of such Third Party Agreement to the users
that are outside the scope of the Services on terms no less favorable than
the terms of the applicable Third Party Agreement.
b) IBM will perform its obligations and responsibilities as an attorney in
fact pursuant to Section 8.3(a) under all Third Party Agreements to which a
--------------
member of the Equifax Group is a party subject to the provisions of the
Agreement, including, without limitation, Section 8.2, this Section 8.3,
----------- -----------
Section 9.1 and Section 11. Upon Equifax's request, IBM will provide to
----------- ----------
Equifax all information and documentation related to its activities as the
Equifax Group's attorney in fact with regard to such Third Party
Agreements. Equifax may terminate or provide additional restrictions on
IBM's attorney in fact appointment with respect to any Third Party
Agreement to which one or more of the members of the Equifax Group is a
party if IBM (i) fails to pay any amount due in a timely manner; (ii)
permits an actual default to occur; or (iii) does not diligently pursue the
service and financial benefits available to the Equifax Group under such
Third Party Agreement.
c) Beginning on the Execution Date (as defined in the applicable Transaction
Document) of each Transaction Document and for the term of each such
Transaction Document, the Equifax Group will not enter into any new, or
terminate or amend any existing, Third Party Agreement to which one or more
members of the Equifax Group is a party that adversely impacts IBM's
ability to provide the Services covered by such Transaction Document or
increases IBM's cost of providing such Services without the prior written
consent of IBM.
8.4 CONFLICTS OF INTERESTS
a) Each Party recognizes that IBM personnel providing Services to the Equifax
Group under the Agreement may perform similar services for others and the
Agreement shall not prevent IBM from performing similar services for others
subject to the restrictions set forth in Section 11 and/or the applicable
--------------------------------
Transaction Document; provided, however, IBM shall not use any of the
--------------------
Equifax Provided Hardware or Equifax Software or Equifax Provided Office
Furnishings to perform similar services for others (including the IBM),
without the prior written consent of Equifax.
b) Neither Party, through its personnel at any site covered under a
Transaction Document, shall knowingly, directly or indirectly, * during
the Term of the Agreement unless otherwise agreed in writing by the Parties
and except as provided in Section 12.6(g). Equifax or IBM * to or *
---------------
from general * will be exempted from this provision.
c) Any * shall be as specified in the applicable Transaction Document.
8.5 ALTERNATE PROVIDERS
a) During the Term, Equifax shall have the right to retain third party
suppliers to perform any service, function, responsibility, activity or
task that is within the scope of the Services or would constitute a New
Service pursuant to Section 3.12, or to perform any such services,
------------
functions, responsibilities or tasks (whether all or a part of the Services
or the New Services) internally. IBM shall cooperate with any such third
party supplier and Equifax as requested from time to time. Such
cooperation shall include, without limitation, (i) providing reasonable
physical and electronic access to the Facilities, the Data Center and the
books and records in the possession of IBM regarding the Equifax Business
and/or the Services; (ii) use of any Machines used by IBM to perform
services for the Equifax Group for the Equifax Business; (iii) use of any
of the Software (other than any Software where the underlying license
agreement does not authorize such access and consent permitting such access
and use has not been obtained); (iv) providing such information (subject to
an appropriate confidentiality agreement, if appropriate) regarding the
operating environment, System constraints, and other operating parameters
as is reasonably necessary for the work product of the third party supplier
of the Equifax Group to be compatible with the Services or New Services;
and (v) such other reasonable cooperation as may be requested by Equifax.
b) IBM's obligations hereunder shall be subject to the third party suppliers'
compliance with reasonable Facilities and Data Center data and physical
security and other applicable standards and procedures, execution of
appropriate confidentiality agreements, and reasonable scheduling of
computer time and access to other resources to be furnished by IBM pursuant
to the Agreement.
c) If IBM's cooperation with Equifax or any third party supplier performing
work as described in Section 8.5(a), causes IBM to expend *
--------------
additional resources and incur costs that IBM would not otherwise have
expended but which fall within the scope of activities comprising the
Services, such additional resources and costs will be charged to Equifax
* and/or * therefor; provided, however, if the additional
resources expended and costs incurred are not within the scope of
activities comprising the Services, Equifax shall reimburse IBM * for
such resources subject to Section 9.11 hereof and for * as
invoiced. The Parties further agree that if in IBM's reasonable, good faith
determination, a third party supplier's
activities affect IBM's ability to meet the Performance Standards or
otherwise provide the Services in accordance with the Agreement, IBM will
provide written notice to Equifax of such determination. The Parties will
cooperate to determine and verify whether such effect is caused by a third
party supplier, the extent of such affect, and how to ameliorate any such
effect. IBM shall be excused for any inability to * or otherwise
provide any of the Services to the extent, and only for the period, any
such third party supplier's activities directly affect and impact IBM's
ability to * or otherwise provide any of the Services in accordance
with the Agreement.
d) Equifax's retention of third party suppliers pursuant to this Section 8.5
-----------
to perform services, functions, activities, tasks or responsibilities that
are within the scope of the Services shall not relieve Equifax of its
obligations set forth in the Agreement to pay IBM the charges applicable to
such services, functions, activities, tasks or responsibilities as set
forth in the Agreement, unless Equifax is relieved from such charge
pursuant to a provision of the Agreement or by the agreement of IBM.
8.6 USE OF SUBCONTRACTORS
a) Within * after the Commencement Date under each such Transaction
Document, the Parties will * under each such Transaction Document
that the * to perform and deliver the part or portion of the Services
indicated on such list as the "Listed Subcontractors"), Affiliates of IBM
shall be deemed to be Listed Subcontractors. * of any subcontractor's
activity with respect to the Equifax Group or the Services, * decision
to * for any function, responsibility or task, (i) that could have
a material affect on the quality, timing, cost, consistency or
performance of the Services under any Transaction Document or on the
operations of any member of the Equifax Group or on the security of the
Equifax Group data, books and records, or Facilities, or on the Equifax
Business as conducted by any member of the Equifax Group, or (ii) where the
subcontractor will interface directly with the members of the Equifax
Group. Upon Equifax's request, * in order to permit Equifax to
determine * Such information shall include * Subject to IBM's
timely provision of the foregoing information to Equifax, Equifax shall *
that is the subject of the * if Equifax has not notified IBM in
writing of * such * on or before the * day after receipt of such
notice from IBM. IBM shall not * unless and until IBM and
Equifax shall have * In addition, IBM shall not disclose any
Confidential Information of the Equifax Group to any subcontractor unless
and until such subcontractor has agreed in writing to protect the
confidentiality of such Confidential Information in a manner equivalent to
that required of IBM by Section 11.
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b) IBM shall remain primarily liable and obligated to Equifax for the timely
and proper performance of all of its obligations hereunder even if such
obligations are delegated to third party subcontractors (including, without
limitation, Affiliates of IBM entering into Transaction Documents with
Equifax and Affiliates of Equifax), and for the proper and timely
performance and actions of any person or entity to which it delegates or
subcontracts any such obligation.
8.7 EQUIFAX APPROVALS AND NOTIFICATION
For those areas of the Services where Equifax (a) has reserved a right-of-
approval, consent or agreement, (b) is required to provide notification, and/or
(c) is to perform a responsibility set forth in the Agreement, and such
approval, consent, notification or performance is delayed or withheld beyond the
period provided in the Agreement, including any Transaction Document and the
Supplement and the Schedules thereto, without authorization or right and, such
delay or withholding is not caused by IBM and affects IBM's ability to provide
the Services under the Agreement including any Transaction Document and the
Supplement and Schedules thereto, Equifax will relieve IBM of the responsibility
for * that portion of the Services to the extent, but only to the extent,
directly affected by such delay or withholding. Equifax will reimburse IBM in
accordance with the Agreement for additional resources, if any, incurred during
such period as a direct result thereof. If not specified otherwise in the
Agreement, the period for such approval or notification shall be * days
unless another time period is otherwise agreed by the Parties.
9. CHARGES/NEW SERVICES/INVOICES/PAYMENTS
9.1 DISBURSEMENTS
Beginning on the Commencement Date of each Transaction Document, IBM will pay as
part of the Services covered by such Transaction Document the Third Party
Providers for the provision of the software, products and services under the
Third Party Agreements as set forth in the applicable Transaction Document. In
addition, IBM will reimburse Equifax in a timely manner for payments to such
Third Party Providers by the Equifax Group for amounts allocable to periods on
and after the Commencement Date under each such Transaction Document. Equifax
will promptly reimburse IBM for all payments to such Third Party Providers made
by IBM if such payments are allocable to the periods prior to any such
Commencement Date and are not otherwise the responsibility of IBM under the
Agreement. If IBM should receive during the Term any refund, credit or other
rebate in respect of such Third Party Agreements which is attributable to a
period prior to the Commencement Date under the applicable Transaction Document,
IBM will promptly notify Equifax of such refund, credit or rebate and will
promptly pay to Equifax the full amount of such refund, credit or rebate. If
Equifax should receive during the Term any refund, credit or other rebate in
respect of such Third Party Agreements which is attributable to a period after
the Commencement Date under the applicable Transaction Document, Equifax will
promptly notify IBM of such refund, credit or rebate and will promptly pay to
IBM the full amount of such refund, credit or rebate.
9.2 MONTHLY CHARGE
For each month of each Contract Year during the term under each Transaction
Document, Equifax agrees to pay the Monthly Charge as specified in the
Supplement and Schedules to such Transaction Document, together with the other
amounts as described in this Section 9.
---------
All periodic charges under each Transaction Document are to be computed on a
calendar month basis, and will be prorated for any partial month, unless
specifically stated otherwise in the Agreement (including the applicable
Transaction Document).
On a monthly basis IBM will invoice Equifax the Monthly Charge under each
Transaction Document for that month in advance, as specified in the Supplement
and Schedules to each such Transaction Document. The invoices will separately
state applicable taxes owed by Equifax by tax jurisdiction, and charges for
other elements comprising the Monthly Charge as determined by the Parties
pursuant to Section 9.5(b).
--------------
9.3 ADDITIONAL CHARGES
Beginning at * under each Transaction Document and at * of each
Transaction Document, Equifax and IBM will review the quantity of Resource
Units utilized by Equifax during * and calculate the * Unplanned
Resource Units utilized by Equifax during * Equifax and IBM will
calculate the charges applicable to such * Unplanned Resource Units for
* in accordance with the Schedule addressing charges under each Transaction
Document, and Equifax will pay the amount of the result of such calculation in
accordance with Section 9.7.
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9.4 COST OF LIVING ADJUSTMENT
IBM will charge or credit Equifax a Cost of Living Adjustment ("COLA") under
each Transaction Document in accordance with the procedures set forth in
Schedule J to each such Transaction Document beginning after the Commencement
----------
Date under each such Transaction Document, as set forth in such Schedule.
9.5 TAXES
a) The disbursements described in Section 9.1, the Monthly Charges described
-----------
in Section 9.2, the additional charges described in Section 9.3 and the
----------- -----------
COLA described in Section 9.4, paid by Equifax are inclusive of
-----------
applicable * taxes attributable to the period on or after the Commencement
Date under each Transaction Document based upon or measured by * cost in
acquiring or providing * furnished to or used by IBM in providing and
performing the Services, (ii) the value or cost of * and (iii) all
taxes payable by IBM with respect to * provided, however, Equifax will
be responsible for paying all * taxes due on or with respect to *
Each Party shall bear sole responsibility for all taxes, assessments and
other real property-related levies on *
b) The Parties agree to reasonably cooperate with each other in good faith to
more accurately determine and reflect each Party's tax liability and to
minimize such liability to the extent legally permissible. Each Party
shall provide and make available to the other any resale certificates and
other exemption certificates or information reasonably requested by either
Party. The Parties will also work together to segregate the Monthly
Charges and other charges, reimbursements and amounts payable hereunder,
into separate payment accounts charged under separate invoices, as
appropriate, for Services and the components of the Services (i.e.,
components that are taxable and nontaxable, including those for which a
sales, use or similar tax has already been paid by IBM and for which IBM
functions merely as a paying agent for Equifax in receiving goods, supplies
or services including licensing arrangements that otherwise are nontaxable
or have previously been subjected to tax, components that are capitalized,
and components that are expensed).
c) Notwithstanding any other provision of the Agreement, if a services, value
added or similar tax is assessed on IBM's provision of the Services (or any
New Services) to Equifax or on IBM's charges to Equifax under the
Agreement, Equifax will be responsible for and pay the amount of any such
tax.
9.6 NEW SERVICES
a) The charges for New Services will be integrated into the Supplement and
Schedules to the affected Transaction Document in accordance with Sections
--------
3.12 and 17.2.
---- ----
b) If the Parties cannot agree either that a function, responsibility or task
falls within the definition of a New Service, * The determination of
whether any function, responsibility or task is a New Service will be
determined pursuant to the dispute resolution provisions in Section 16.
----------
Equifax shall * of any * the disputed function, responsibility or task
under this Section 9.6 * and * of any * the disputed function,
-----------
responsibility or task under this Section 9.6 * by Equifax or * in
-----------
accordance with * if requested by IBM, pending a resolution of the
dispute in accordance with Section 16. Any * Equifax of any such * by
----------
Equifax * and * pursuant to this Section 9.6 after resolution of the
-----------
applicable dispute, shall be * from the * with respect to such
dispute and then by IBM. All * not * and * by either Party to the
other Party upon resolution of the dispute with respect to which * shall be
* upon resolution of the * together with * at the * from the date
that the * was * IBM from Equifax under the Agreement through the date
of * IBM to Equifax.
9.7 INVOICE PAYMENT
At its election, Equifax will pay each invoice for charges under the Agreement
either by wire funds transfer or other electronic means acceptable to IBM to an
account specified by IBM or by bank check, within the calendar month in which
such invoice is received by Equifax, provided Equifax receives such invoice on
or before the * day of such month; otherwise such payment shall be made
within * days after the date of Equifax's receipt of the invoice. In the event
that any invoice payment is not received by IBM within * days following the
date specified for such payment herein, a late payment fee of * per month, or
the maximum amount permissible by law, whichever is less, of the unpaid, late
invoice payment will be due and payable by Equifax to IBM from the date such
payment became overdue through the date of payment to IBM.
No invoice for charges for any of the Services shall be delivered to Equifax *;
provided, however, any Services that are * expressly stated in the Agreement
as * shall be excluded from the limitation of this sentence to the extent, but
only to the extent, expressly set forth in the Agreement.
9.8 *
a) At the end of the first * of the Term and at the end of each * period
thereafter, Equifax U.S. may elect * on a Transaction Document basis *.
The cost payable to * will be * The Parties will jointly * The *
will focus on *
b) Each Transaction Document will set forth a * for *
provided under such Transaction Document and * The * will be either
the * or an agreed * and the Parties shall exercise the rights and
obligations described herein if * the agreed upon * For purposes of
the Agreement, the * shall be the * of * to which * were *
c) The result of each * will be submitted to the IPT, Equifax and IBM. In
the event that the * indicates that IBM's *, the IPT will promptly *
identify opportunities for improvements in the * of the Services *
d) With respect to each area identified by the IPT * as an area for
improvement * of the Services * as set forth in Section 9.8(c),
--------------
IBM * proceed in a commercially reasonable manner * Equifax will
cooperate with IBM in a commercially reasonable manner to assist IBM in
this activity. Notwithstanding the foregoing, IBM may, at its sole
discretion, elect to *
e) *
f) In the event that IBM shall fail to comply with the requirements of Section
-------
9.8(d) as to * Equifax may * with respect to * as to which IBM has
------
failed to comply with the requirements of Section 9.8(d), * the Services
---------------
allocable to * and take such * the Services and * in the Services *
for the Services *.
g) Nothing in this Section 9.8 shall be deemed to reduce or increase the
-----------
obligations of IBM to provide the Services * as set forth in the Agreement.
9.9 *
If IBM * set forth in any Transaction Document, IBM shall * set forth in a
Schedule to such Transaction Document (each, a * collectively, the *against
the * for the * following the month in which the * The Parties agree that
the * are a *
* that the Equifax Group * for which * in the Agreement, that the * in
each such * would be * and that the * the Equifax Group. The Parties
agree that the * and are the * of Equifax with respect to the * with
respect to which such * are * to Equifax subject to and as limited by the
provisions of Sections 12 and 13.
------------------
9.10 OTHER CREDITS
Except as otherwise set forth in the Agreement, with respect to any amount to be
paid or reimbursed to Equifax by IBM at the time any such amount is due and
payable to Equifax, IBM may pay that amount to Equifax by applying a credit for
the month such amount is due and payable against the charges otherwise payable
to IBM under the Agreement, at IBM's option. Notwithstanding the foregoing, if
the amount to be so paid or reimbursed by IBM in any specific month, exceeds the
charges to Equifax for such month, IBM shall promptly pay any difference to
Equifax by check or wire transfer during such month. *
9.11 *
IBM will * the Equifax Group for the * pursuant to a Transaction Document
that will be * IBM, or in the case of a Transaction Document that has been
assigned to an IBM Affiliate, * IBM or such IBM Affiliate, * after the
Effective Date, * for * Equifax * to * subject to any changes *
to reflect the * IBM or such IBM Affiliate * provided, however, that the
provisions of this Section 9.11 apply only to * and * IBM or IBM Affiliates *
------------
after the Effective Date.
9.12 DISPUTED CHARGES/CREDITS
In the event Equifax disputes the accuracy or applicability of a charge or
credit or other financial arrangement described in the Agreement (i.e., Monthly
Charge, Unplanned Resource Units, COLA, Service Credits, pass-through ▇▇▇▇▇▇▇▇,
etc.), Equifax shall notify IBM of such dispute as soon as practicable after the
discrepancy has been discovered. The Parties will investigate and resolve the
dispute using the dispute resolution processes provided under Section 16 of the
----------
Agreement. Any undisputed amounts contained in or applicable to an invoice will
be paid by Equifax and any undisputed credit amounts will be promptly credited
by IBM. Upon request of either Party, Equifax in the case of a disputed charge,
or IBM in the case of a disputed credit, shall * Upon resolution of the
dispute, the Parties shall be paid * in connection with such dispute in
proportion to the amount received by each Party with respect to such dispute,
and the Parties shall each pay * attributable to the disputed amount in an *
of the disputed amount paid to each Party. Unpaid and uncredited monies that are
in dispute and *
9.13 REDUCTION OF EQUIFAX WORK
a) If, during the Term, Equifax experiences significant changes in the scope
or nature of its business which have or are reasonably expected to have the
effect of causing a substantive and sustained decrease in the amount of IBM
resources used in performing the Services, provided such decreases are not
due to Equifax resuming the provision of such Services by itself or Equifax
transferring the provision of such Services to another vendor, such changes
shall be governed by this Section 9.13. Examples of the kinds of events
------------
that might cause such substantial decreases are:
1) changes in Equifax's products or markets;
2) mergers, acquisitions or divestitures; or
3) changes in market priorities.
b) Equifax will notify IBM of any event or discrete set of events which
Equifax believes qualifies under this Section 9.13, and IBM will identify
------------
in a plan that will be submitted to Equifax for review and acceptance, any
changes that can be made to accommodate such decrease of resource
requirements in a cost-effective manner without disruption to Equifax's
ongoing operations, and the *
c) Upon acceptance by Equifax, IBM will make any applicable adjustments to the
* and the * to reflect the foregoing and distribute an amended
Supplement to the Parties.
d) Equifax may, at its option and expense, employ an accredited and
independent auditor to verify IBM's methodology for calculating * conforms
to accepted accounting practices.
10. INTELLECTUAL PROPERTY RIGHTS
IBM, the members of the Equifax Group and their respective contractors and
subcontractors may develop, create, modify or personalize (collectively,
"Develop") certain computer programming code, including source and object code
--------
("Code") and other Materials in order to perform the Services. The provisions
----
of this Section 10 set forth the respective rights of Equifax and IBM in such
----------
Code and other Materials. This Section 10 does not apply to development,
----------
modification, creation, or personalization of templates for commercially
available IBM products (for example, Lotus Notes templates). To the extent that
Services under any Transaction Document include the development, modification,
creation or personalization of such templates, rights with respect to such
templates will be set forth in the applicable Transaction Document or applicable
Schedule(s).
10.1 OWNERSHIP OF MATERIALS
With respect to any Materials whether Developed solely by IBM or its
subcontractors, or jointly by the Equifax Group personnel or their
subcontractors and IBM or its subcontractors, ownership will be as follows:
a) * shall be owned by Equifax or another member of the Equifax Group, as
applicable. During the Term, IBM shall have an irrevocable, nonexclusive,
worldwide, paid-up license to use, execute, reproduce, display, perform,
operate, distribute, modify, develop, personalize and create Derivative
Works from such Materials internally, and the right to sublicense third
parties to do any of the foregoing, for the sole purpose of performing the
Services.
b) * shall be owned by IBM. During the Term , the Equifax Group shall have an
irrevocable, nonexclusive, worldwide, paid-up license to use in the Equifax
Business, execute, operate, reproduce, display, perform, distribute,
modify, Develop, personalize and create Derivative Works from, such
Materials internally, and the right to sublicense third parties to do any
of the foregoing for the Equifax Group.
c) With respect to any Materials whether or not Developed under the Agreement,
which are or have been Developed solely by the Equifax Group personnel
and/or their contractors, such Materials shall be owned by Equifax. IBM
shall have an irrevocable, nonexclusive, worldwide, paid-up license to use,
execute, operate, reproduce, display, perform, distribute, modify, Develop,
personalize and create Derivative Works from such Materials internally and
the right to sublicense third parties to do any of the foregoing, to the
extent necessary and for the sole purpose of performing the Services during
the Term.
d) Any ownership or license rights herein granted to either Party or another
member of the Equifax Group or any other Authorized Users are limited by
and subject to any patents and copyrights held by, and terms and conditions
of any license agreements with, applicable Third Party Providers.
e) To the extent that by operation of law any of the Materials may not be
owned by IBM or the Equifax Group to which ownership has been allocated
under this Section 10, each Party agrees to promptly assign, or cause to be
----------
assigned, and take such actions and execute and deliver such documents as
shall be necessary or appropriate to effect such assignment without further
consideration. Each Party hereby assigns, without further consideration,
the ownership of all right, title and interest in all U.S. and foreign
copyrights, and mask work rights (if any) in the Materials to the other
Party as set forth in this Section 10. Such assignee shall have the right
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to obtain and hold in its own name or transfer patents and copyrights,
applications, registrations, renewals and all other rights relating or
pertinent thereto.
10.2 OBLIGATIONS REGARDING MATERIALS
a) The Parties agree to reproduce copyright legends which appear on any
portion of the Materials which may be owned by the Parties and any and all
third parties.
b) Except as set forth in Section 11, the Agreement shall not preclude either
----------
Party from Developing materials or providing services which are competitive
to the Materials or Services which might be delivered pursuant to the
Agreement, except to the extent any of same may infringe any of the other
Party's * rights.
c) Neither the Agreement nor any disclosure made hereunder grants any license
to either Party under any patents rights, copyrights, mask work rights or
trade secrets of the other Party, except for the licenses expressly granted
under this Section 10 and Section 12.6 hereof.
---------- ------------
d) Each Party and their respective Affiliates shall have the right to develop
commercialize, use, publish and distribute materials and/or intellectual
property which may be substantially similar to the Materials (including,
without limitation, computer programs and other copyrighted works) for
their own use, for third parties or for other purposes provided that such
activities are effected without breach of their obligations under the
Agreement and do not infringe the intellectual property rights of the other
Party and/or its Affiliates.
11. CONFIDENTIALITY/DATA SECURITY
11.1 Confidential Information
IBM and Equifax each acknowledge that the other Party and/or its Affiliates
possesses and will continue to possess information, which has commercial value
in such other Party's and/or its Affiliates' business and is not in the public
domain. Such information has been created, discovered, developed by such other
Party and its Affiliates or provided to it by a third party, and such other
Party and/or its Affiliates holds property rights in such information by
assignment, license or otherwise. "Confidential Information" means with respect
------------------------
to a Party, * including, without limitation, the terms of the Agreement *
"Trade Secrets" mean with respect to a Party, information related to the
-------------
services and/or business of the disclosing Party and/or its Affiliates and/or of
a third party which (a) derives economic value, actual or potential, from not
being generally known to or readily ascertainable by other persons who can
obtain economic value from its disclosure or use; and (b) is the subject of
efforts by the disclosing Party and/or its Affiliates that are reasonable under
the circumstances to maintain its secrecy, including without limitation (i)
marking any information reduced to tangible form clearly and conspicuously with
a legend identifying its confidential or proprietary nature; (ii) identifying
any oral presentation or communication; * Assuming the criteria in sections
(a) and (b) above are met, Trade Secrets include, but are not limited to,
technical and nontechnical data, formulas, patterns, compilations, computer
programs and software, devices, drawings, processes, methods, techniques,
designs, programs, financial plans, product plans, and lists of actual or
potential customers and suppliers. "Company Information" means collectively the
-------------------
Confidential Information and Trade Secrets. *
11.2 OBLIGATIONS
a) Equifax and IBM will each * use the same level of care to prevent
disclosure to third parties and to hold confidential, the Company
Information of the other Party as it employs to avoid disclosure,
publication or dissemination of its own information of a similar nature but
in no event less than a reasonable standard of care. Notwithstanding the
foregoing, the Parties and their Affiliates to which a Transaction Document
is assigned may disclose Company Information in the case of Equifax and its
Affiliates which accept assignment of a Transaction Document, to members of
the Equifax Group, and in the case of both Parties and their Affiliates,
which accept assignment of a Transaction Document, to the authorized
contractors and subcontractors involved in providing and using the Services
under the Agreement where: (i) such disclosure is necessary to permit the
members of the Equifax Group and the contractor or subcontractor to perform
its duties hereunder or use the Services; (ii) members of the Equifax Group
and the contractor or subcontractor agree in writing to observe the
confidentiality and restricted use and disclosure covenants and standards
of care set forth in this Section 11 and IBM and Equifax are each third
----------
party beneficiaries for all purposes; and (iii) IBM in the case of Equifax
Company Information received by IBM and/or its Affiliates and disclosed by
them as permitted herein or Equifax in the case of IBM Company Information
received by Equifax and/or its Affiliates and disclosed by them as
permitted herein, assumes full responsibility for the acts or omissions
of its Affiliates, contractors and subcontractors no less than if the acts
or omissions were those of IBM and Equifax respectively.
b) Neither Equifax nor IBM shall use the Company Information of the other
Party except in the case of IBM and its Affiliates and subcontractors, (i)
in connection with the performance of the Services and (ii) as otherwise
specifically permitted in the Agreement, and in the case of Equifax, its
contractors and other members of the Equifax Group, (A) as specifically
permitted in the Agreement and (B) in connection with the use of the
Services. IBM shall be responsible to ensure that its Affiliates and
subcontractors comply with this Section 11.2(b) and Equifax shall be
---------------
responsible to ensure that the members of the Equifax Group and its
contractors comply with this Section 11.2(b).
---------------
c) Without limiting the generality of the foregoing, neither Party nor their
Affiliates will publicly disclose the terms of the Agreement, except to the
extent permitted by this Section 11 and to enforce the terms of the
----------
Agreement, without the prior written consent of the other. Furthermore,
neither IBM nor Equifax nor their Affiliates will make any use of the
Company Information of the other Party and its Affiliates except as
contemplated by the Agreement; acquire any right in or assert any lien
against the other Party's Company Information except as contemplated by the
Agreement; or refuse to promptly return, provide a copy of or destroy such
Company Information upon the request of the disclosing Party.
d) Notwithstanding any other provision of the Agreement, neither Party will be
restricted in using, in connection with its business operations, any data
processing or network management ideas, concepts, know-how and techniques
which are retained in the minds of employees who have had access to the
other Party's Company Information.
11.3 EXCLUSIONS
Notwithstanding the foregoing, this Section 11 will not apply to any information
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which IBM or Equifax can demonstrate was: (a) at the time of disclosure to it,
in the public domain; (b) after disclosure to it, published or otherwise becomes
part of the public domain through no fault of the receiving party; (c) without a
breach of duty owed to the disclosing party, is in the possession of the
receiving party at the time of disclosure to it; (d) received after disclosure
to it from a third party who had a lawful right to and, without a breach of duty
owed to the disclosing party, did disclose such information to it; or (e)
independently developed by the receiving party without reference to Company
Information of the disclosing party. Further, either Party may disclose the
other Party's Company Information to the extent required by law or order of a
court or governmental agency. However, the recipient of such Company
Information must give the other Party prompt notice and make a reasonable effort
to obtain a protective order or otherwise protect the confidentiality of such
information, all at the discloser's cost and expense. It is understood that the
receipt of Company Information under the Agreement will not limit or restrict
assignment or reassignment of employees of IBM and its Affiliates and the
Equifax Group within or between the respective Parties and their Affiliates.
11.4 LOSS OF COMPANY INFORMATION
The receiving Party will immediately notify the disclosing Party, orally or in
writing in the event of any disclosure, loss, or use in violation of the
Agreement of a disclosing Party's Company Information known to the receiving
Party.
11.5 LIMITATION
The covenants of confidentiality set forth herein (a) will apply after the
Effective Date to any Company Information disclosed to the receiving Party
before and after the Effective Date and (b) will continue and must be maintained
from the Effective Date through the * and (i) with respect to Trade Secrets,
until the earlier of * or until such Trade Secrets no longer qualify as trade
secrets under applicable law; and (ii) with respect to Confidential Information
for a period equal to the shorter of * or until such Confidential Information no
longer qualifies as confidential under applicable law. Neither Party will be
responsible for the security of the Company Information of the other Party
during transmission via public communications facilities or for the loss of or
damage to such information during transmission, except to the extent that such
breach of security or loss or damage is caused by the failure of such Party to
perform its obligations under the Agreement, including exercisin g the standard
of care set forth in Section 11.2(a).
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11.6 DATA
All of Equifax's Company Information (including, without limitation, data,
records and reports related to the Equifax Group, the Equifax Business and the
Services) is represented by Equifax to be the exclusive property of Equifax,
and/or its Affiliates or the property of third parties licensed to Equifax
and/or its Affiliates, and the furnishing of such information, data, records and
reports to, or access to such items by, IBM and/or its Affiliates and/or
subcontractors will not grant any express or implied license to or interest in
IBM and/or its Affiliates and/or subcontractors relating to such information,
data, records and reports except as required to perform the Services pursuant to
the Agreement. Unless specifically provided otherwise in a Transaction
Document, IBM shall have no responsibility with respect to compliance with laws
or regulations applicable to the storage, maintenance, and distribution of
Equifax Company Information to the extent that any such activity by IBM is
performed or implemented in accordance with Equifax's instruction or direction.
Upon request by Equifax at any time and from time to time and without regard to
the default status of the Parties under the Agreement, IBM and/or its Affiliates
and/or subcontractors shall promptly deliver to Equifax Equifax's Company
Information (including without limitation all data, records and related reports
regarding the Equifax Group, the Equifax Business and the Services) in
electronic (tape) format and in such hard copy as existing on the date of the
request by Equifax.
12. TERMINATION
12.1 Termination By Equifax
Equifax may terminate any individual Transaction Document for the following
reasons:
a) A material breach of such Transaction Document by IBM and/or its Affiliates
that remains uncured for * after receipt of written notice thereof;
provided, however, if a material breach of such Transaction Document by IBM
and/or its Affiliates (other than a breach of Section 11 hereof) occurs
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that by its nature cannot be cured by IBM in such * period but IBM
submits a commercially reasonable written plan to Equifax within such
period to cure such breach after the * period (but in no event more than *
after such notice of breach), the cure period for such breach shall be
extended to the date set forth in the plan; or
b) There exists * (i) on the Services support of the * of the Equifax Group
or the portion of
the Equifax Group constituting the user group under such Transaction
Document, or (ii) on the management of the Services or the portion of the
Services covered by such Transaction Document; or
c) * upon * Equifax to IBM; or
d) In the event of * upon one hundred eighty (180) days prior notice by
Equifax to IBM, which notice must be given within 180 days after * or
e) IBM and/or its Affiliate that has accepted assignment of such Transaction
Document becomes insolvent or is unable to pay its debts or enters into or
files (or has filed or commenced against it) a petition, arrangement,
application, action or other proceeding seeking relief or protection under
the bankruptcy laws of the United States or any similar laws of the United
States or any state of the United States or any other country or transfers
all or substantially all of its assets to another person or entity; or
f) IBM and/or its Affiliate that has accepted assignment of such Transaction
Document * under the circumstances and resulting from the events described
in * or
g) Under the circumstances set forth in Section *
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12.2 TERMINATION BY IBM
IBM may terminate any Transaction Document for a material default by Equifax
that remains uncured for a period of * after written notice thereof to Equifax
from IBM.
12.3 TERMINATION CHARGES
a) In the event of a termination by Equifax pursuant to * or * Equifax shall
pay IBM * and * In the event of a termination by Equifax pursuant to *
Equifax shall pay IBM * but will not be responsible for *. In the event
of a termination by Equifax pursuant to * or * or * or * or * for failing
to provide * , Equifax shall not be responsible for the payment of * In the
instance of a termination by equifax pursuant to * Equifax may not recover
any damages from IBM for * , provided that nothing in this sentence shall
preclude any recovery by Equifax pursunat to Section 8.4(b), Section 9,
------------- ---------
Section 10, Section 11, Section 12, Section 13, Section 14, Section 15, or
---------- ---------- ---------- ---------- ---------- ----------
Section 17.3.
------------
b) Except as set forth in Section 12.3(a), Equifax shall not be obligated to
---------------
pay any charges that would otherwise accrue and be payable by Equifax
pursuant to the Agreement or any Transaction Document after the effective
date of the expiration or termination of the Agreement or any such
Transaction Document.
12.4 [RESERVED]
12.5 SERVICES TRANSFER ASSISTANCE
a) The Parties agree that IBM will cooperate with the Equifax Group to assist
in the orderly transfer of the services, functions, responsibilities, tasks
and operations comprising the Services under each Transaction Document
provided by IBM and its Affiliates hereunder to one or more members of the
Equifax Group itself or another services provider in connection with the
expiration or earlier termination of the Agreement and/or each Transaction
Document for any reason, however described. * Services Transfer Assistance
thereunder is completed. Upon Equifax's request IBM or its Affiliate shall
provide transfer assistance in connection with migrating the work of the
Equifax Group to the Equifax Group itself or another services provider
("Services Transfer Assistance") commencing up to * prior to expiration or
----------------------------
upon any notice of termination, or of non-renewal of the Agreement or any
Transaction Document. In the event Equifax shall * and payable under the
Agreement within * of the start of Services Transfer Assistance, with or
without an attendant * IBM shall not be required to provide Services
Transfer Assistance unless Equifax * for * if any, applicable to the
Transaction Document(s) * and a reasonable projection of * such Transaction
Documents for the * Services Transfer Assistance. In no event will
Equifax's * be considered a failure by Equifax to * hereunder. Further, IBM
shall provide the Services Transfer Assistance in accordance with this
Section 12.5 even in the event of Equifax's * with or without an * if
------------
Equifax * of the * the Transaction Document(s) being terminated (other than
the * which shall be * as provided in the Supplement) for the Services
Transfer Assistance * Equifax desires IBM to provide such services to the
Equifax Group or its designees. Services Transfer Assistance shall be
provided through the effective date of the expiration or termination of the
Services under the Transaction Documents being terminated, and upon request
by Equifax, the effective date of such expiration or termination shall be
extended for up to * thereafter pursuant to the terms and conditions of the
Agreement and applicable Transaction Document(s) * shall be considered * of
such Transaction Documents, however any such * shall not affect the payment
date or amount of any applicable Termination Charges, which Termination
Charges shall be due and payable as of * Services Transfer Assistance shall
include, but not be limited to, providing the Equifax Group and their
respective agents, contractors and consultants, as necessary, with services
described in a Schedule to each Transaction Document.
b) If any Services Transfer Assistance provided by IBM requires the
utilization of additional resources that IBM would not otherwise use in the
performance of the Agreement and applicable Transaction Documents but for
which there is a current Resource Unit Baseline, Equifax will pay IBM for
such usage at the then-current applicable Transaction Document(s) charges
and in the manner set forth in the applicable Transaction Document(s). If
the Services Transfer Assistance requires IBM to * in the performance of
the Services under the Agreement and applicable Transaction Document(s),
then IBM shall notify Equifax of the identity and scope of the activities
requiring that IBM * and the projected * that will be * for the performance
of such assistance. Upon Equifax's authorization, IBM shall perform *
Within * after the date of the
* Equifax * to provide such assistance to Equifax.
c) If Equifax exercises its option to * by IBM for Services Transfer
Assistance with regard to any Transaction Document and it is determined
that such * associated with the Services Transfer Assistance, then IBM
shall * or, if no * promptly * Equifax at the end of such Services
Transfer Assistance. Conversely, if the * IBM for Services Transfer
Assistance with regard to any Transaction Document does no * hereunder
for the provision of Services Transfer Assistance to Equifax, then IBM
shall * and Equifax shall *
12.6 OTHER RIGHTS UPON TERMINATION
At the expiration or earlier termination of the Agreement and/or any Transaction
Document for any reason, however described, IBM agrees in each such instance, as
applicable:
a) Upon Equifax's request, IBM agrees to sell to Equifax or its designee for *
the IBM Machines owned by IBM then currently being used by IBM primarily to
perform the Services or the portion of the Services covered by the
Transaction Document, as applicable. In the case of IBM Machines that IBM
is leasing and using primarily to perform the Services, IBM agrees to
permit Equifax or its designee to either buy-out the lease on the IBM
Machines and purchase the IBM Machines from the lessor or assume the
lease(s) and secure the release of IBM thereon, subject to the terms of the
applicable lease. Equifax shall be responsible for any sales, use or
similar taxes associated with such purchase of such IBM Machines or the
assumption of such leases.
b) IBM will grant to the members of the Equifax Group and their Affiliates an
irrevocable, nonexclusive, worldwide, perpetual, paid-up source and object
code license to use, execute, operate, reproduce, display, perform,
distribute, modify, Develop and personalize, and create Derivative Works
from, * as a part of and in connection with the Equifax Business, and the
right to sublicense third parties to do any of the foregoing for the
members of the Equifax Group. Except as specifically set forth in this
Section 12.6(b), nothing in this Section 12.6(b) grants Equifax any license
-------------- --------------
to any materials *
c) IBM will provide to the Equifax Group a source code and an object code
license for * and not otherwise owned by or licensed to Equifax in
accordance with Section 12.6(b) and not generally commercially available
---------------
for use by the Equifax Group as a part of and in connection with the
Equifax Business, upon terms and prices to be mutually agreed upon by the
Parties * or, in the case where no such * At Equifax's option, IBM will
recommend a mutually agreeable commercially available substitute, if
available, to perform the same function.
d) Subject to Section 12.6(e), if IBM has licensed or purchased and is using
--------------
any generally commercially available Software to provide the Services to
the Equifax Group at the date of expiration or termination of the Agreement
or any Transaction Document, Equifax may elect to take a transfer or an
assignment of the license for such software (and any attendant maintenance
agreement), subject to the terms of such license, and reimburse IBM for the
initial license or purchase charges for such IBM Software in an
amount equal to the remaining unamortized cost of such Software, if any,
depreciated over a * life. Equifax shall also pay any transfer
fee or charge imposed by the applicable vendor and not the obligation of
IBM hereunder, and subject to Equifax's acceptance of any applicable vendor
terms and conditions, such licensed Software shall be transferred or
assigned to Equifax.
e) If IBM has licensed or purchased and is using any generally commercially
available Software to provide the Services to the Equifax Group and other
IBM customers in a shared environment at the date of expiration or
termination of the Agreement or any Transaction Document, IBM, upon request
by Equifax, will assist Equifax in obtaining licenses for such Software
(and any attendant maintenance agreement) subject to Equifax's payment of
any license fee and other charge imposed by the applicable vendor.
f) IBM will use commercially reasonable efforts to negotiate license
arrangements with third parties that will minimize the amount of license
and maintenance agreement transfer and assignment fees to be paid by
Equifax. Equifax may participate in the negotiation of such license and
maintenance agreement arrangements. IBM shall provide reasonable advance
written notice to Equifax of such anticipated negotiations.
g) Upon the date of expiration or termination of the Agreement or any
Transaction Document for any reason, the Equifax Group shall have the right
to * for the Equifax Group hereunder or under such Transaction Document,
as applicable ("Service Employees"). Promptly after either Party provides
-----------------
the other Party written notice of termination or expiration with the prior
consent of each Services Employee (each of whom IBM will notify of
Equifax's interest), IBM agrees, subject to the agreement of the Service
Employees, to supply Equifax with the names and resumes requested by
Equifax for the purpose of exercising its rights under this Section 12.6,
------------
at no charge. Equifax's rights under this Section 12.6 will take precedence
------------
over any * that may otherwise limit an *.
h) Upon Equifax's request, IBM will transfer or assign to Equifax or its
designee, on mutually acceptable terms and conditions, any Third Party
Agreements not otherwise treated in this Section 12.6, applicable solely to
------------
services being provided to Equifax, including, without limitation, Third
Party Agreements for maintenance, Disaster Recovery Services and other
necessary third party services then being used by IBM to perform the
Services subject to the payment by Equifax of any transfer fee or charge
imposed by the applicable vendors.
12.7 EFFECT OF TERMINATION/SURVIVAL OF SELECTED PROVISIONS
Notwithstanding the expiration or earlier termination of the Services or the
Agreement or any Transaction Document for any reason however described, the
following Sections of the Agreement shall survive any such expiration or
termination: Section 8.4(b), Section 10, Section 11, Section 12.5, Section 12.6,
--------------- ---------- ---------- ------------ ------------
Section 12.7, Section 13, Section 14, Section 15, Section 16.1 and Section 17.
------------ ---------- ---------- ---------- ------------ ----------
13. LIABILITY
13.1 LIABILITY CAPS
a) Except as provided in Section 13.2, the liability of IBM and its Affiliates
------------
to Equifax and its Affiliates under each Transaction Document arising out
of or resulting from the performance or non-performance of
IBM and/or its Affiliates and/or subcontractors of the Services and its
obligations under such Transaction Document shall be limited in the
aggregate for all claims, causes of action or occurrences:
(i) to Direct Damages incurred by Equifax and its Affiliates equal to the
charges paid by Equifax for the Services set forth in the supplement
to such Transaction Document during the * months immediately prior
to the first event which is the subject of the first claim or if *
months have not elapsed in the term of such Transaction Document at
the time of the first such event, the charges to Equifax for the
Services set forth in such Supplement during the * months of the
term of such Transaction Document ("IBM Direct Damages Cap"); and
(ii) in the event Equifax claims Direct Damages for event(s) which are the
subject matter of claim(s) or cause(s) of action which are the basis
for and result in Equifax's termination of the Agreement or any
Transaction Document pursuant to * then Equifax shall be entitled to
recover * from IBM, not to exceed * which amount shall be applied
only toward such *.
b) Except as provided in Section 13.2, the liability of Equifax to IBM arising
-------------
out of or resulting from the performance and non-performance of its
obligations under each Transaction Document shall be * which in the
aggregate shall not exceed * (the "Equifax Direct Damages Cap"). The
--------------------------
IBM Direct Damages Cap and the Equifax Direct Damages Cap are herein
collectively called the "Direct Damages Caps".
-------------------
13.2 EXCLUSIONS
The provisions of Section 13.1 will not apply to (a) * including but not
limited to * (b) the * (c) Losses arising from * (d) the amounts to be paid
or credited to Equifax as * (e) amounts payable by IBM under * of the
Agreement; and (f) amounts payable to Equifax. *
13.3 DIRECT DAMAGES AND COVER CHARGES
Unless specifically provided to the contrary in the Agreement, neither party
shall have any liability whether based on contract, tort (including without
limitation, negligence), warranty, guarantee or any other legal or equitable
grounds to the other party for any damages other than Direct Damages.
a) "Direct Damages" mean actual, direct damages incurred by the claiming Party
--------------
which include, by way of example but without limitation, * but "Direct
Damages" shall not include (A) loss of
interest, profit or revenue of the claiming Party or (B) incidental,
consequential, special or indirect damages suffered by the claiming Party
* and shall not include punitive or exemplary damages suffered by the
claiming Party arising from or related to the Agreement, even if such Party
has been advised of the possibility of such losses or damages.
b) * means all costs and expenses * after commercially reasonable efforts
to mitigate such costs and expenses.
13.4 DEPENDENCIES
In no event will IBM or its subcontractors be liable for any damages if and to
the extent caused by Equifax's or its Affiliates' or its subcontractors' failure
to perform its responsibilities hereunder; provided, however, for the purposes
of this Section 13.4, neither IBM nor its Affiliates nor the Third Party
------------
Providers shall be considered a subcontractor of Equifax. Neither Equifax nor
its Affiliates or subcontractors shall be liable for any damages if and to the
extent caused by any failure to perform by IBM or its Affiliates or
subcontractors.
13.5 REMEDIES
At its option, Equifax may seek all remedies available to it under law and in
equity or * subject to the limitations and provisions specified in this
Section 13. If IBM's provision of the Services is such that * and
----------
Equifax elects to * Equifax's * shall constitute * with respect to
*. However, within * of the * Equifax * with respect to
any * upon which Equifax is basing * Equifax may * and pursue a damage
claim against IBM, if any such claim exists.
14. INDEMNITIES
14.1 Indemnity by IBM
IBM will indemnify and hold each member of the Equifax Group and their
respective officers, directors, employees, agents, successors, contractors and
assigns (each an "Indemnitee") harmless from and against any and all Losses
----------
incurred by any of them arising from or in connection with:
a) any Claims of infringement of any patent or any copyright, trademark,
service ▇▇▇▇, trade name, trade secret, or similar property right conferred
by contract or by common law * or any state, alleged to have been
incurred because of or arising out of any aspect of the Services (including
without limitation any information technology, information management and
communications services, equipment, software or other resources) provided
by IBM and/or its Affiliates or subcontractors in its performance of the
Services; provided, however, IBM will have no obligation with respect to
any Losses to the extent arising from or in connection with Claims for
copyright infringement and/or breach of software licenses related
to the Services committed by an Indemnitee or any employee of an Indemnitee
that is not the result of IBM and/or its Affiliates or subcontractors
failing to perform its obligations under the Agreement including, without
limitation, obtaining any Required Consent for which it has responsibility;
and provided, further, that IBM will have no obligation with respect to any
Losses to the extent arising out of or in connection with an Indemnitee's
modification of a program or a machine provided by IBM and/or its
Affiliates or subcontractors, or an Indemnitee's combination, operation or
use of the services, equipment, software or other resources provided by IBM
and/or its Affiliates or subcontractors with devices, data, programs or
other resources not furnished by, through or at the specification of IBM or
its Affiliates or subcontractors, or an Indemnitee's use of equipment or
software provided by IBM and/or its Affiliates to such Indemnitee under a
Transaction Document in a country or countries other than those countries
specifically designated in the Transaction Document *
b) any Claims, however described (including without limitation, failure to *
or arising from IBM's exercise of its rights to * pursuant to Section
8.3(a)), accruing during the term of a Transaction Document (that is, not
arising or resulting from a breach by the Equifax Group before such
effective date or after the termination date of such Transaction Document)
regarding any * covered by such Transaction Document; provided, however,
IBM will have no obligation with respect to any Losses to the extent
arising out of or in connection with Claims for copyright infringement
and/or breach of software licenses related to the Services (i) committed by
any Indemnitee or any employee of an Indemnitee that is not the result of
IBM and/or its Affiliates or subcontractors failing to perform its
obligations under such Transaction Document including, without limitation,
* or (ii) to the extent arising out of or result from Equifax failing to
perform its obligations under the Agreement including *
c) any Claims for personal injuries, death or damage to tangible personal or
real property of third parties including employees of IBM, its Affiliates,
contractors and subcontractors caused by the negligence or willful
misconduct of IBM, its employees, Affiliates, contractors or
subcontractors; provided that IBM will have no obligation under this part,
to the extent the same arise out of or in connection with the negligence or
willful misconduct of a member of the Equifax Group;
d) any Claims for amounts, including but not limited to taxes, interest and
penalties, assessed or claimed against the Equifax Group which are
obligations of IBM under the Agreement;
e) any Claim for * arising out of the Agreement or as a result of the
Services performed at the Facilities, the Data Center or the other Equifax
sites or locations to the extent IBM or its Affiliates or subcontractors
has * or * from which the Claim arises;
f) any Claims directly attributable to IBM's decision to request that Equifax
* and Equifax's assent to and compliance with such decision and *
incurred by Equifax associated with such decision by IBM and compliance by
Equifax;
g) any Claims for * arising out of or resulting from IBM * or other
information provided to Equifax in writing regarding * for the Services
to Equifax; and
h) any Claims by any Affected Employees arising out of or resulting from their
employment, or the termination of their employment, with IBM and/or its
Affiliates, except to the extent any such Claim arises from a wrongful act
of Equifax and/or its Affiliates and/or subcontractors.
In the event and to the extent that a Claim is made against an Indemnitee by an
employee of IBM, its contractors or subcontractors providing services, products
and/or software hereunder, the Parties agree that IBM shall indemnify and hold
harmless the Indemnitee to the same extent as if the Claim was made by a non-
employee of IBM, its contractors or subcontractors. IBM's indemnification
hereunder shall be primary and immediate. Accordingly, in addition to other
provisions herein, and in order to render the Parties' intent and this
indemnification agreement fully enforceable, IBM, in an indemnification claim
hereunder, expressly and without reservation waives any defense or immunity it
may have under any applicable workers' compensation law(s) or any other statute
or judicial decision disallowing or limiting such indemnification and consents
to a cause of action for indemnity. This waiver and consent to indemnification
is made irrespective of and specifically waiving any defense or immunity under
any statute or judicial decision.
14.2 INDEMNITY BY EQUIFAX
Equifax will indemnify and hold harmless IBM, its Affiliates that are assignees
of a Transaction Document, and their respective officers, directors, employees,
agents, successors and assigns (each an "IBM Indemnitee") harmless from and
--------------
against any and all Losses incurred by any of them arising from or in connection
with:
a) any Claims of infringement of any patent or any copyright, trademark,
service ▇▇▇▇, trade name, trade secret, or similar property right conferred
by contract or by common law * or any state, alleged to have been
incurred because of or arising out of any equipment, materials and other
resources (including without limitation information technology, information
management and communications services equipment, software or other
resources) provided to IBM and/or its Affiliates by the Equifax Group in
connection with the performance of the Services; provided, however, Equifax
will have no obligation with respect to any Losses to the extent arising
out of or in connection with Claims for copyright infringement and/or
breach of software licenses related to the Services, committed by an IBM
Indemnitee or any employee of an IBM Indemnitee that is not the result of
the Equifax Group failing to perform its obligations under the Agreement
including, without limitation, obtaining any Required Consent for which it
has responsibility; and provided, further, that Equifax will have no
obligation with respect to any Losses to the extent arising out of or in
connection with an IBM Indemnitee's modification of a program or a machine
provided by a member of the Equifax Group, or a IBM Indemnitee's
combination, operation or use of the equipment, software or other resources
provided by the Equifax Group with devices, data, programs or other
resources not furnished by the Equifax Group, or an IBM Indemnitee's use of
equipment or software provided by the Equifax Group to such IBM Indemnitee
under a Transaction Document in a country or countries other than those
countries specifically designated in the Transaction Document *
b) any Claims accruing before the effective date or after the termination date
of a Transaction Document regarding any * by such Transaction Document,
including without limitation, failure to * but not including Claims
arising or resulting from IBM and/or its Affiliates failing to perform its
obligations under the Agreement including, without limitation, *
c) any Claims for amounts, including without limitation, taxes, interest and
penalties assessed or claimed against IBM which are obligations of Equifax
under the Agreement;
d) any Claims for personal injuries, death or damage to tangible personal or
real property of third parties including employees of the Equifax Group
caused by the negligence or willful misconduct of the Equifax Group or
their employees; provided that Equifax will have no obligation, under this
part, to the extent the same arise out of or in connection with the
negligence or willful misconduct of IBM, its Affiliates or subcontractors;
e) any Claims arising out of or resulting from the operations of the Equifax
Group, including the provision of access to the Services pursuant to
Section 17.15, to the extent such Claims do not arise out of a breach of
-------------
the Agreement by IBM and are not the subject of a specific indemnity
provided to Equifax by IBM in Section 14.1; provided, however, that Equifax
------------
will have no obligation under this item, to the extent the Claims arise out
of or result from the negligence or willful misconduct of IBM, its
Affiliates or subcontractors;
f) any Claim for violation of * arising out of the Services performed at the
Facilities, the Data Center or other Equifax Group sites or locations
except to the extent that IBM or its Affiliates or subcontractors has
caused the * from which the Claim arises;
g) any Claims by any Affected Employees arising out of or resulting from their
employment, or the termination of their employment, with Equifax, except
to the extent any such Claim arises from a wrongful act of IBM and/or its
Affiliates and/or subcontractors; and
h) any Claims arising out of or resulting from the operations of the Equifax
Group and arising from acts of Authorized Users.
In the event and to the extent that a Claim is made by an employee of a member
of the Equifax Group against an IBM Indemnitee, the Parties agree that Equifax
shall indemnify and hold harmless the IBM Indemnitee to the same extent as if
the Claim was made by a non-employee of the members of the Equifax Group.
Equifax's indemnification hereunder shall be primary and immediate.
Accordingly, in addition to other provisions herein, and in order to render the
Parties' intent and this indemnification agreement fully enforceable, Equifax,
in an indemnification Claim hereunder, expressly and without reservation waives
any defense or immunity it may have under any applicable workers' compensation
law(s) or any other statute or judicial decision disallowing or limiting such
indemnification and consents to a cause of action for indemnity. This waiver
and consent to indemnification is made irrespective of and specifically waiving
any defense or immunity under any statute or judicial decision.
14.3 EMPLOYMENT ACTIONS
It is agreed that IBM shall be solely and exclusively responsible for personnel
decisions affecting IBM's employees, contractors, subcontractors and agents
(including without limitation, hiring, promotions, training, compensation,
evaluation, discipline, and discharge). Equifax shall be solely and exclusively
responsible for personnel decisions affecting employees, contractors, and agents
of the members of the Equifax Group (including without limitation, hiring,
promotion, training, compensation, evaluation, discipline and discharge).
14.4 EXCLUSIVE REMEDY
The indemnification rights of each Indemnitee and IBM Indemnitee (individually
an "Indemnified Party") for third party Claims pursuant to Sections 14.1 and
----------------- -----------------
14.2, shall be the sole and exclusive remedy of such Indemnified Party with
----
respect to each such third party Claim to which such indemnification relates.
14.5 INDEMNIFICATION PROCEDURES
a) Written notice shall be given to the Party that is obligated to provide
indemnification under Sections 14.1 and 14.2 (the "Indemnifying Party"), if
---------------------- ------------------
any civil, criminal, administrative or investigative action or proceeding
is commenced or threatened by a third party (any of the above being a
"Claim") against any Indemnified Party. Such notice shall be given as
------
promptly as practicable but in all events, within a period that will not
prejudice the rights of the Indemnified Party under the Agreement to defend
the Claim. After such notice, if the Indemnifying Party acknowledges in
writing to the Indemnified Party that the Agreement applies with respect to
such Claim, then the Indemnifying Party shall be entitled to take control
of the defense and investigation of such Claim and to employ and engage
attorneys of its sole choice to handle and defend the same, at the
Indemnifying Party's sole cost and expense. The Indemnifying Party must
deliver written notice of its election of taking such control of the claim
to the Indemnified Party not fewer than ten (10) days prior to the date on
which a response to such Claim is due or such lesser period as is
reasonable given the nature of the Claim and the notice and response time
permitted by law or the facts and circumstances. The Indemnified Party
shall cooperate in all reasonable respects with the Indemnifying Party and
its attorneys in the investigation, trial, defense and settlement of such
Claim and any appeal arising therefrom. The Indemnified Party may
participate in such investigation, trial, defense and settlement of such
Claim and any appeal arising therefrom, through its attorneys or otherwise,
at its own cost and expense. No settlement of a Claim that involves a
remedy other than the payment of money by the Indemnifying Party shall be
entered into without the consent of the Indemnified Party, which consent
will not be unreasonably withheld.
b) After notice to the Indemnified Party of the Indemnifying Party's election
to assume full control of the defense of any such Claim, the Indemnifying
Party shall not be liable for any legal expenses incurred thereafter in
connection with the defense of that Claim by the Indemnified Party. If the
Indemnifying Party does not promptly assume full control over and
diligently pursue the defense of a Claim as provided in this Section 14.5,
------------
the Indemnified Party shall have the right to defend, settle or otherwise
resolve the Claim in such manner as it may deem appropriate, at the cost
and expense of the Indemnifying Party, and the Indemnifying Party may
participate in such defense, at its sole cost and expense. In no event
shall any settlement of the Claim pursuant to this Section 5(b) require the
------------
consent of the Indemnifying Party.
15. INSURANCE AND RISK OF LOSS
15.1 IBM INSURANCE
During the Term of the Agreement, IBM and each IBM contractor and subcontractor
shall maintain and keep in force, at its own expense, the following minimum
insurance coverages and minimum limits:
a) workers' compensation insurance, with statutory limits as required by the
various laws and regulations applicable to the employees of IBM or any IBM
contractor or subcontractor;
b) employer's liability insurance, for employee bodily injuries and deaths,
with a limit * each accident;
c) comprehensive or commercial general liability insurance, covering claims
for bodily injury, death and property damage, including premises and
operations, independent contractors, products, services and completed
operations (as applicable to the Services), personal injury, contractual,
and broad-form property damage liability coverages, with limits as follows:
(1) occurrence/aggregate limit * for bodily injury, death and property
damage per occurrence of * combined aggregate; or (2) split liability,
without aggregate limits, of (i) * for bodily injury per person; (ii) *
for bodily injury per occurrence; and (iii) * per occurrence for
property damage;
d) comprehensive automobile liability insurance, covering owned, non-owned and
hired vehicles, with limits as follows (1) combined single limit of * for
bodily injury, death and property damage per occurrence; or (2) split
liability limits of (i) * for bodily injury per person; (ii) * for
bodily injury per occurrence; and (iii) * for property damage; and
e) all-risk property insurance, on a replacement cost basis, covering the real
and personal property of IBM which IBM is obligated to insure by the
Agreement. Such real and personal property may include buildings,
equipment, furniture, fixtures and supply inventory.
All such policies of insurance of IBM and its contractors and subcontractors
shall provide that the same shall not be canceled nor the coverage modified nor
the limits changed without first giving * prior written notice thereof to
Equifax. No such cancellation, modification or change shall affect IBM's
obligation to maintain the insurance coverages required by the Agreement. Except
for workers' compensation insurance *. All liability insurance policies shall be
written on an "occurrence" policy form.* As its interest may appear on the
property insurance policies of IBM. IBM shall be responsible for payment of any
and all deductibles from insured claims under its policies of insurance. The
coverage afforded under any insurance policy obtained by IBM pursuant to the
Agreement shall be primary coverage regardless of whether or not Equifax has
similar coverage. IBM and its contractors and subcontractors shall not perform
under the Agreement without the prerequisite insurance *. Unless previously
agreed to in writing by Equifax, IBM's contractors and subcontractors shall
comply with the insurance requirements herein. The minimum limits of coverage
required by the Agreement may be satisfied by a combination of primary and
excess or umbrella insurance policies. If IBM or its contractors or
subcontractors shall fail to comply with any of the insurance requirements
herein, upon written notice to IBM by Equifax and a * cure period, Equifax may,
without any obligation to do so *. The maintenance of the insurance coverages
required under the Agreement shall in no way operate to limit the liability of
IBM to Equifax under the provisions of the Agreement.
The parties do not intend to shift all risk of loss to insurance. The naming of
Equifax as additional insured is not intended to be a limitation of Provider's
liability and shall in no event be deemed to, or serve to, limit Provider's
liability to Equifax to available insurance coverage or to the policy limits
specified in this Section 14, nor to limit Equifax's rights to exercise any and
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all remedies available to Equifax under contract, at law or in equity.
15.2 RISK OF PROPERTY LOSS
IBM is responsible for risk of loss of, or damage to, the Software, Machines,
Equifax Provided Office Furnishings and * in its possession or control, and
Equifax is responsible for risk of loss of, or damage to, the Software, Machines
and * in its possession or control.
15.3 *
a) To the extent permitted by law, IBM and its Affiliates, contractors,
subcontractors, and their respective directors, officers, employees, agents
and insurers * the member of the Equifax Group and their respective
directors, officers, employees, agents, contractors and subcontractors *
IBM and its Affiliates, contractors and subcontractors * in connection
with the Agreement. Each * of IBM and its Affiliates, contractors and
subcontractors * the Equifax Group and their respective directors,
officers, employees, agents, contractors and subcontractors * in
connection with the Agreement.
b) To the extent permitted by law, Equifax, the other members of the Equifax
Group and their respective directors, officers, employees, agents and
insurers * and its Affiliates, contractors and subcontractors *
Equifax and the other members of the Equifax Group * IBM and its
Affiliates, contractors and subcontractors * in connection with the
Agreement.
16. DISPUTE RESOLUTION
16.1 Dispute Resolution Procedures
a) Any dispute between the Parties either with respect to the interpretation
of any provision of the Agreement or with respect to the performance
hereunder by IBM or by Equifax or their respective Affiliates shall be
resolved as specified in this Section 16.1.
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1) Upon the written request of either Party, a dispute shall be submitted
to the Integrated Planning Team for resolution.
2) The Integrated Planning Team shall meet as often as necessary to gather
and furnish to each Party all non-privileged information with respect
to the matter in issue which is appropriate and germane in connection
with its resolution.
3) The Integrated Planning Team shall discuss the problem and negotiate in
good faith in an effort to resolve the dispute without the necessity
of any formal proceeding relating thereto.
4) During the course of such negotiation, all reasonable requests made by
one Party to the other for nonprivileged information reasonably
related to the Agreement, will be honored in order that each Party may
be fully advised of the other Party's position.
5) The specific format for such discussions will be left to the discretion
of the Integrated Planning Team, but may include the preparation of
agreed upon statements of fact or written statements of position
furnished by each Party to the other Party.
b) If the Integrated Planning Team does not resolve the dispute within *
after the date of receipt by the other Party of a request to submit the
dispute to the Integrated Planning Team as described in Section 16.1(a)(1)
------------------
(the "Notice"), then the dispute shall be escalated to an officer of
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Equifax and an officer of IBM, for their review and resolution within *
days after receipt of the Notice.
c) If the officers referred to in Section 16.1(b) do not resolve the dispute
---------------
within * after the Notice, then the dispute shall be escalated to the
President of Equifax and the IBM corporate officer in charge of IBM Global
Services, for their review and resolution within * after the Notice.
d) If the dispute is not resolved by the Parties' representatives identified
in Section 16.1(c) within * after the Notice, the Parties agree to try in
good faith to resolve the dispute * before resorting to litigation or
some other dispute resolution procedure.
e) If the dispute is not resolved by * within * days after the Notice,
then the Parties may initiate formal proceedings; however, formal
proceedings for the judicial resolution of any such dispute may not be
commenced until the earlier of:
1) the designated representatives concluding in good faith that amicable
resolution through continued negotiation of the matter in issue does
not appear likely; or
2) * after the Notice; or
3) * before the statute of limitations governing any cause
of action relating to such dispute would expire.
Notwithstanding anything to the contrary in this Section 16.1(e), the Integrated
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Planning Team shall have the authority to stay the time periods set forth in
this Section 16.1 upon unanimous vote of its members to take such action.
------------
f) Notwithstanding any other provision of this Section 16.1, either Party may
------------
resort to court action for injunctive relief at any time if the dispute
resolution processes set forth in this Section would permit or cause
irreparable injury to such Party or any third party claiming against such
Party, due to delay arising out of the dispute resolution process.
16.2 CONTINUED PERFORMANCE
The Parties agree to continue performing their respective obligations under the
Agreement while the dispute is being resolved unless and until such obligations
are terminated or expire in accordance with the provisions of the Agreement or
unless such performance is prevented by the actions of the other Party.
17. GENERAL
17.1 RELATIONSHIP OF PARTIES
The Agreement shall not be construed as constituting either Party or its
Affiliates as partner of the other Party and its Affiliates or to create any
other form of legal association that would impose liability upon one Party or
its Affiliates for the act or failure to act of the other Party and its
Affiliates or as providing either Party or its Affiliates with the right, power
or authority (express or implied) to create any duty or obligation of the other
Party and its Affiliates, except as provided in Section 8.3. Each Party shall
------- ---
be responsible for the management, direction and control of the employees of
such Party and its Affiliates and such employees shall not be employees of the
other Party or its Affiliates.
Each Party will submit to the other Party all advertising, written sales
promotion, press releases and other publicity matters relating to the Agreement
in which the other Party's or its Affiliate's name or ▇▇▇▇ is mentioned or
language from which the connection of said name or ▇▇▇▇ ▇▇▇ be inferred or
implied, and will not publish or use such advertising, sales promotion, press
releases, or publicity matters without prior written approval of the other
Party. However, either Party may include the other Party's and/or its
Affiliates name and a factual description of the work performed under the
Agreement on employee bulletin boards, in its list of references and in the
experience Section of proposals to third parties, in internal business planning
documents and in its annual report to stockholders, and whenever required by
reason of legal, accounting or regulatory requirements.
17.2 ENTIRE AGREEMENT, UPDATES, AMENDMENTS AND MODIFICATIONS
The Agreement (including the Transaction Documents and the Supplement and
Schedules thereto) constitutes the entire agreement of the Parties and their
Affiliates with regard to the Services and matters addressed therein, and all
prior agreements (including, without limitation, the Agreement for Systems
Operations Services dated April 20, 1993, as amended), letters, proposals,
discussions and other documents regarding the Services and the matters addressed
in the Agreement (including the Transaction Documents and the Supplement and
Schedules) and are superseded and merged into the Agreement (including the
Transaction Documents and the Supplement and Schedules thereto). Updates,
amendments and modifications to the Agreement including the Transaction
Documents may not be made orally, but shall only be made by a written document
signed in the case of this Master Agreement by both Parties and in the case of
each Transaction Document, by the Parties and, if applicable, permitted asignees
of such Transaction Documents. Any terms and conditions varying from the
Agreement (including the Transaction Documents and the Supplement and Schedules
thereto) on any order or written notification from either Party or its
Affiliates shall not be effective or binding on the other Party or its
Affiliates.
17.3 FORCE MAJEURE
a) Neither Party shall be liable for any default or delay in the performance
of its obligations hereunder, except for payment defaults, if and to the
extent and while such default or delay is caused, directly or indirectly,
by fire, flood, earthquake, elements of nature or acts of God, acts of war,
terrorism, riots, civil disorders, rebellions or revolutions, strikes,
lockouts, or labor difficulties or any other similar cause beyond the
reasonable control of such Party and its Affiliates other than strikes,
lockouts, or labor difficulties initiated by such Party's or its Affiliates
or subcontractor's employees; and provided such default or delay could not
have been prevented by reasonable precautions and cannot reasonably be
circumvented by the nonperforming Party or its Affiliates through the use
of alternate sources, work-around plans or other means, (individually, each
being a "Force Majeure Event").
-------------------
b) If a Force Majeure Event occurs, the nonperforming Party will be excused
from any further performance or observance of the obligation(s) so affected
for as long as such circumstances prevail and such Party continues to use
commercially reasonable efforts to recommence performance or observance
whenever and to whatever extent possible without delay. Any Party so
delayed in its performance will immediately notify the other by telephone
and describe at a reasonable level of detail the circumstances causing such
delay (to be confirmed in writing within * after the inception of such
delay).
c) If any Force Majeure Event substantially prevents, hinders, or delays
performance of the Services under any Transaction Document necessary for
the performance of the critical functions of the Equifax users of such
Services for more than * then at Equifax's option:
i) Equifax may * . Provided Equifax has not * pursuant to Section
17.3(c)(ii) and Equifax continues to make payment to IBM under such
Transaction Document and Equifax exerts reasonable efforts to * for
the provision of such Services to Equifax until such time as IBM
restores the Services and meets the Performance Standards but in no
event for more than * and/or
ii) Until such time as IBM has restored the Services, Equifax may * by
Equifax in a written notice * , and Equifax will pay all fees due
and payable * .If Equifax elects * , Equifax shall only pay on
account of such * (but will not be liable for * as well as *
d) This Section 17.3 does not limit or otherwise affect IBM's obligation to
------------
provide Disaster Recovery Services in accordance with Section 3.3 and the
-----------
Schedules to each Transaction Document. In the event of a Force Majeure
Event affecting Equifax, this Section 17.3 will not limit or otherwise
------------
relieve Equifax's obligation to pay any monies due IBM under the terms of
the Agreement, except as provided in Section 17.3(c)(ii) and Section 3.3.
------------------- -----------
17.4 NONPERFORMANCE
To the extent any nonperformance by either Party of its nonmonetary obligations
under the Agreement results from or is caused by the other Party's failure to
perform its obligations under the Agreement, such nonperformance shall be
excused.
17.5 WAIVER
No waiver of any breach of any provision of the Agreement shall constitute a
waiver of any prior, concurrent or subsequent breach of the same or any other
provisions hereof.
17.6 SEVERABILITY
If any provision of the Agreement shall be held to be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby, and such
provision shall be deemed to be restated to reflect the Parties' original
intentions as nearly as possible in accordance with applicable law(s).
17.7 COUNTERPARTS
The Agreement shall be executed in counterparts. Each such counterpart shall be
an original and together shall constitute but one and the same document.
17.8 GOVERNING LAW
The Agreement and any and all claims and disputes arising out of or in
connection with or related to the relationships and arrangements between the
Equifax Group and IBM and its Affiliates described in the Agreement will be
governed by and construed in accordance with the laws of the State of Georgia
and the United States of America. The Parties hereby (a) agree that the * or if
such court does not have subject matter jurisdiction, the appropriate * shall
have exclusive jurisdiction over the actions arising out of or related to or in
connection with the Agreement and the subject matter of the Agreement, whether
in contract, tort, or any other form of action ("Action"); (b) agree to initiate
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any such Action against the other Party only in such courts; (c) agree that they
shall not raise any defense to the lawful jurisdiction of such courts; and (d)
agree that they shall not attempt the removal of any Action to any other court,
whether local, state or federal courts of the United States or the courts of any
other country.
17.9 BINDING NATURE AND ASSIGNMENT
The Agreement will be binding on the Parties and their respective successors and
permitted assigns. Except as provided in this Section 17.9, neither Party may,
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or will have the power to, assign the Agreement without the prior written
consent of the other, which consent shall not be unreasonably withheld, except
that either Party may assign its rights and obligations under the Agreement in
whole or in part to an Affiliate which expressly assumes such Party's
obligations and responsibilities hereunder, without the approval of the other
Party. The assigning Party shall remain fully liable for and shall not be
relieved from the full performance of all obligations under the Agreement. Any
attempted assignment that does not comply with the terms of this Section 17.9
------------
shall be null and void. Any Party assigning its rights or obligations to an
Affiliate in accordance with the Agreement shall provide written notice thereof
to the other Party together with a copy of the assignment document, within three
(3) business days of such assignment.
17.10 NOTICES
a) Whenever one Party is required or permitted to give notice to the other
Party under the Agreement, such notice will be in writing unless otherwise
specifically provided herein and will be deemed given when delivered in
hand, one (1) day after being given to an express courier with a reliable
system for tracking delivery, or five (5) days after the day of mailing,
when mailed by United States mail, registered or certified mail, return
receipt requested, postage prepaid, or when sent if delivered by facsimile.
b) Notifications will be addressed as follows:
1) For breach or default under the Master Agreement, notify:
In the case of IBM: In the case of Equifax:
IBM Co-Chairman of the Equifax Co-Chairman of the
Integrated Planning Team Integrated Planning Team
* *
* *
Facsimile: * Facsimile: *
with a copy to: with a copy to:
IBM General Counsel Equifax Chief Legal Officer
* *
* *
Facsimile: * Facsimile: *
2) For termination, breach or default under a Transaction Document,
notify:
In the case of IBM: In the case of Equifax:
IBM Project Executive Equifax Project Executive
at the Notice address set forth at the Notice address set forth
in the affected Transaction in the affected Transaction
Document Document
with copies to: with copies to:
IBM Co-Chairman of the Equifax Co-Chairman of the
* *
* *
Facsimile: * Facsimile: *
and and
IBM General Counsel Equifax Chief Legal Officer
* *
* *
Facsimile: * Facsimile: *
3) For all other notices under the Master Agreement:
In the case of IBM: In the case of Equifax:
IBM Co-Chairman of the Equifax Co-Chairman of the
Integrated Planning Team Integrated Planning Team
* *
* *
Facsimile: * Facsimile: *
4) For all other notices under a Transaction Document:
In the case of IBM: In the case of Equifax:
IBM Project Executive Equifax Project Executive
at the Notice address set forth at the Notice address set forth
in the affected Transaction in the affected Transaction
Document Document
with a copy to: with a copy to:
IBM Co-Chairman of the Equifax Co-Chairman of the
Integrated Planning Team Integrated Planning Team
* *
* *
Facsimile: * Facsimile: *
Either Party hereto may from time to time change its address for notification
purposes by giving the other prior written notice of the new address and the
date upon which it will become effective.
17.11 NO THIRD PARTY BENEFICIARIES
The Parties do not intend, nor will any Section hereof be interpreted, to create
for any third party beneficiary rights with respect to either of the Parties,
except (a) each member of the Equifax Group and each IBM Affiliate shall be a
third party beneficiary under the Agreement with respect to enforcement of any
rights such member of the Equifax Group or IBM Affiliate may have under Section
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10, Section 11, or Section 14 of the Agreement, and (b) each Affiliate of the
-- ---------- ----------
Parties to which a Transaction Document has been assigned and accepted, will
have the rights and benefits described in that Transaction Document, *
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17.12 OTHER DOCUMENTS
Upon request of the other Party, on or after the Effective Date and the date(s)
of any Transaction Documents and amendments or revisions to any of the
foregoing, each Party shall furnish to the other such certificate of its
Secretary, certified copy of resolutions of its Board of Directors, or opinion
of its counsel as shall evidence that the Agreement or any amendment or revision
hereto has been duly executed and delivered on behalf of such Party or its
Affiliates.
17.13 CONSENTS AND APPROVALS
The Parties agree that in any instance where a consent, approval or agreement is
required of a Party in order for the other Party to perform under or comply with
the terms and conditions of the Agreement, then such Party will not unreasonably
withhold or delay such consent, approval or agreement and where consent,
approval or agreement cannot be provided, the Party shall notify the other Party
in a timely manner.
17.14 HEADINGS
All headings herein and the table of contents are not to be considered in the
construction or interpretation of any provision of the Agreement. The Agreement
was drafted with the joint participation of both Parties and shall be construed
neither against nor in favor of either, but rather in accordance with the fair
meaning thereof. In the event of any apparent conflicts or inconsistencies
between the provisions of the Master Agreement, the Exhibits, the Transaction
Documents, the Schedules or other attachments to the Master Agreement and
Transaction Documents, such provisions shall be interpreted so as to make them
consistent to the extent possible, and if such is not possible, the provisions
of the Master Agreement shall prevail.
17.15 REMARKETING
Equifax may not remarket all or any portion of the Services provided under the
Agreement, or make all or any portion of the Services available to any party,
without the prior written consent of IBM; provided, however, Equifax may *
("Elements of the Services") subject to the following limitations:
------------------------
1. Equifax shall independently set its own pricing and policies in connection
with any such access to Elements of the Services;
2. Equifax does not utilize IBM's name as part of its * any such access to
Elements of the Services;
3. Equifax discloses to * accessing Elements of the Services that IBM is
running the Systems but that IBM has no liability of any kind to
4. if Equifax's activities for * accessing Elements of the Services cause
IBM to fail to meet a *, IBM shall be excused from such failure to the
extent IBM demonstrates that the failure was caused by such * activities
and to the extent such failure was not caused by IBM's failure to satisfy
its obligations under the Agreement; and
5. if IBM incurs incremental costs in connection with any such access to
Elements of the Services by * , such costs will be treated either under
an existing charging methodology or, if none exists, then as a New Service
in accordance with Section 3.12 hereof.
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Nothing herein may be construed to limit or hinder Equifax or the other members
of the Equifax Group from (i) marketing, selling or performing its services to
and for its customers or potential customers and/or (ii) from providing any
portion of the Services to its Affiliates.
17.16 COMMENCEMENT OF ACTIONS
Neither party may bring an action, regardless of form, arising out of the
Agreement more than two (2) years after the later to occur of the date on which
the cause of action has arisen or the date such cause of action was or should
have been discovered.
17.17 IBM LOGO PRODUCTS WARRANTIES
Nothing in the Agreement is intended to replace, supercede or vitiate the
warranties and attendant rights and remedies granted to members of the Equifax
Group by IBM Logo Products as set forth in any applicable lease, purchase and/or
license arrangement.