Exhibit 10.20
MASTER AGREEMENT
FOR
TRANSITIONAL SERVICES
This MASTER AGREEMENT FOR TRANSITIONAL SERVICES (the "Agreement"),
dated November 26, 2002, is effective as of the Closing, and is by and between
GetronicsWang Co. LLC d/b/a Getronics ("Getronics"), a limited liability company
formed under the laws of the State of Delaware with a principal place of
business at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇, ▇▇▇▇▇, and Getronics Government
Solutions, L.L.C. (the "Company"), a limited liability company formed under the
laws of the State of Delaware with a principal place of business at ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇, ▇▇▇▇▇.
WHEREAS, Getronics, the Company, DigitalNet Holdings, Inc.
("Holdings"), a corporation formed under the laws of the State of Delaware, and
DigitalNet, Inc., ("Purchaser"), a corporation formed under the laws of the
State of Delaware with a principal place of business at ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇, ▇▇▇▇▇ are parties to a Purchase Agreement dated as of
September 27, 2002 (the "Purchase Agreement") pursuant to which Purchaser has
acquired 100% of the outstanding Membership Interests of the Company from
Getronics; and
WHEREAS, in order to accomplish an orderly and uninterrupted transition
in the performance of certain services in connection with the business and
operations of the Company, Getronics has agreed to provide certain services to
the Company for an interim period following the Closing Date and the Company has
agreed to provide certain services to Getronics for an interim period following
the Closing Date, and to take certain other actions, as set forth herein;
NOW, THEREFORE, in consideration of the mutual agreements and covenants
set forth herein and intending to be legally bound hereby, the parties agree:
1. DEFINITIONS
The following terms shall have the following meanings when capitalized
herein, unless otherwise specifically indicated. Capitalized terms used but not
otherwise defined in this Agreement shall have the respective meanings ascribed
to them in the Purchase Agreement.
"AFFILIATE" shall mean any person or entity that directly, or
indirectly through one or more intermediaries, controls, or is controlled by, or
is under common control with, a party, but only for so long as such control
exists.
"AGREEMENT" shall have the meaning ascribed to it in the preamble.
"COMPANY" shall have the meaning ascribed to it in the preamble.
"DEFAULTING PARTY" shall have the meaning ascribed to it in Section
8.2(b).
"DISCLOSING PARTY" shall have the meaning ascribed to it in Section 6.
"EXPIRATION DATE" shall have the meaning ascribed to it in Section
8.1(a).
"INVOICE" shall have the meaning ascribed to it in Section 3.3(a).
"GETRONICS" shall have the meaning ascribed to it in the preamble.
"NOTIFYING PARTY" shall have the meaning ascribed to it in Section
8.2(b).
"PROJECT MANAGER" shall have the meaning ascribed to it in Section 2.2.
"PROPRIETARY INFORMATION" shall have the meaning ascribed to it in
Section 6.1.
"PURCHASE AGREEMENT" shall have the meaning ascribed to it in the
preamble.
"RECIPIENT PARTY" shall mean the party hereunder receiving Transitional
Services from the Service Provider pursuant to a Transitional Services
Agreement.
"SERVICE PROVIDER" shall mean the party hereunder (or its designated
Affiliate or authorized subcontractor) providing Transitional Services to
Recipient Party pursuant to a Transitional Services Agreement.
"TRAINING REQUEST" shall have the meaning ascribed to it in Section 4.
"TRANSITIONAL SERVICES" shall mean those services to be provided by
Service Provider to Recipient Party summarized in EXHIBIT A hereto and as
detailed in the Transitional Services Agreements, attached in EXHIBIT B and
EXHIBIT C hereto.
"TRANSITIONAL SERVICES AGREEMENT" shall have the meaning ascribed to it
in Section 2.1.
"VISITED PARTY" shall have the meaning ascribed to it in Section 6.5.
"VISITING PARTY" shall have the meaning ascribed to it in Section 6.5.
2. TRANSITIONAL SERVICES
2.1 TRANSITIONAL SERVICES AGREEMENTS. During the term of this
Agreement, Service Provider shall provide the Transitional Services to Recipient
Party as detailed in the agreement for such Transitional Services, attached
hereto in EXHIBIT B or EXHIBIT C (each, a "Transitional Services Agreement").
2.2 PROJECT MANAGERS. Each Transitional Services Agreement designates
both a Service Provider employee and a Recipient Party employee as the "Project
Managers" for the Transitional Services stipulated in such Transitional Services
Agreement. The Project Managers shall be the principal point of contact for the
parties for all matters relating to such Transitional Services. Each Project
Manager shall have appropriate decision-making authority for its respective
party and shall be responsible for such party's monitoring of the status of the
Transitional Services stipulated in such Transitional Services Agreement. A
Project Manager may be replaced at any time and for any reason by the party that
initially appointed such Project Manager and such replacement shall be effective
upon delivery of written notice of such
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replacement to the other party.
2.3 LEVEL OF SERVICES. Service Provider shall deliver Transitional
Services at substantially the same quality level at which such services were
provided by such party during the period January 1, 2002, through the Closing
Date; provided, however, that Recipient Party shall ensure that the physical and
technical environment and level of trained personnel at Recipient Party's
facilities are substantially the same as that which were present during the
period January 1, 2002, through the Closing Date. Notwithstanding the foregoing,
Recipient Party may make changes to the physical or technical environment or
level of trained personnel at Recipient Party's facilities to the extent such
changes do not, in Service Provider's reasonable determination, impact upon
Service Provider's ability to deliver the Transitional Services. In the event
that Service Provider's ability to deliver the Transitional Services is impacted
as a result of any such changes, then Service Provider shall be entitled to
propose additional costs to remedy the effect of such changes in accordance with
Section 3.2.
2.4 COOPERATION. Each party shall cause its employees, and, as
appropriate, its Affiliates, to cooperate in good faith and in a professional
and workmanlike manner with employees of the other to the extent required for
the effective delivery of the Transitional Services.
2.5 REPORTS. Upon request, Service Provider will be provided data and
reports that are generated in Recipient Party's ordinary course of business and
that are reasonably necessary for Service Provider to provide the Transitional
Services to Recipient Party.
2.6 THIRD PARTY SERVICES. Upon prior consultation and mutual agreement
of the parties, Service Provider shall have the right to engage the services of
independent subcontractors to assist in the delivery of Transitional Services
contemplated under this Agreement, provided that Service Provider: (a) imposes
on such subcontractor the confidentiality obligations specified in Section 6;
(b) adequately supervises the performance of such subcontractor to ensure that
the Transitional Services meet, in all respects, the requirements of this
Agreement and the applicable Transitional Services Agreement; (c) notifies
Recipient Party in the event that the Transitional Services furnished by such
subcontractor fail to meet the requirements of this Agreement and/or the
applicable Transitional Services Agreement; and (d) shall, in all events, remain
liable for its obligations hereunder.
2.7 NEW OR ADDITIONAL WORK. Neither party shall be bound to accept work
outside the scope of the services described in the respective Transitional
Services Agreements.
3. PAYMENTS
3.1 TRANSITIONAL SERVICES PRICING. Pricing for Transitional Services is
set forth in the applicable Transitional Services Agreement for such
Transitional Services.
3.2 ADDITIONAL TRANSITION COSTS. In the event Service Provider
anticipates incurring direct incremental costs to provide Transitional Services
as a result of: (a) modifications to Service Provider's systems or processes
reasonably required to provide Transitional Services or (b) changes to the
physical or technical environment or level of trained personnel at Recipient
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Party's facilities, Service Provider shall provide Recipient Party a written
notice of the nature and amount of such incremental costs and the Transitional
Services to which they relate no less than 90 days prior to incurring such costs
(the "Incremental Cost Notice"). Recipient Party shall notify Service Provider
in writing within 30 days after receiving the Incremental Cost Notice if
Recipient Party determines that it does not wish to incur such costs. In such
case, unless the parties otherwise agree, Service Provider may terminate the
Transitional Services Agreement to which the incremental costs relate 60 days
from the date of the Incremental Cost Notice at no cost or penalty to Service
Provider. If, however, Recipient Party does not provide such notice to Service
Provider within such 30-day period, then Service Provider shall be entitled to
incur such costs specified in the Incremental Cost Notice and invoice Recipient
Party for the same in accordance with Section 3.3.
3.3 INVOICING AND PAYMENT.
(a) Unless otherwise provided in a Transitional Services
Agreement, within 15 days following the end of each calendar month during the
term hereof, the parties shall provide to each other invoices, in form, format
and media reasonably acceptable to the parties, totaling all charges incurred by
the respective party under each Transitional Services Agreement during such
month (each, an "Invoice"). In addition, within 30 days following the Expiration
Date of each Transitional Services Agreement, Service Provider of such
Transitional Services shall provide to Recipient Party a final Invoice
indicating all outstanding charges that are due and payable through such date.
(b) All amounts due under each Invoice are payable upon
receipt of such Invoice, by check or wire transfer. Invoices not paid in full
within 30 days following receipt shall accrue interest after the expiration of
such 30-day period at six percent per annum until paid in full. Notwithstanding
the foregoing, all Invoices received by the Company in accordance with the terms
of this Agreement or a Transitional Services Agreement on or before December 15,
2002, shall be paid in full not later than December 31, 2002, or shall accrue
interest at six percent per annum from December 31, 2002, until paid in full.
3.4 TAXES. The fees payable by the parties pursuant to Sections 3.1,
3.2 and 3.3 are exclusive of any federal, state, municipal or other U.S. or
foreign government taxes, duties, excises, tariffs, fees, assessments or levies
now or hereinafter imposed on the performance or delivery of Transitional
Services. Any taxes (including property taxes), duties, excises, tariffs, fees,
assessments or levies imposed on the performance or delivery of Transitional
Services, except for taxes on the income of Service Provider, shall be the
responsibility of Recipient Party. If a Service Provider pays or incurs any such
tax, duty, excise, tariff, fee, assessment or levy, then Service Provider may
include such amount on the Invoice to Recipient Party in accordance with Section
3.3, provided that the same is identified expressly on the relevant Invoice.
3.5 RECORDS. Each party shall keep such full and adequate records as
are necessary to determine and verify the accuracy of the charges to be assessed
pursuant to this Section 3. Upon five business days' prior written notice, each
party shall have access to those books and records reasonably necessary to
ascertain the charges under the Transitional Services Agreements, provided,
however, that no copies of such books and records may be made absent the other
party's express written consent. Such records shall be retained for a period of
two years after
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termination of this Agreement pursuant to Section 8.
4. TRAINING
Subject to Section 6 below, each party shall allow the other party's
employees and consultants reasonable access to such party's relevant facilities
and personnel for observation and training purposes. The requesting party shall
make such request in writing to the other party no less than 15 business days in
advance of the proposed training date and in such written request shall state
the nature of the training it seeks, the purpose for such training and the names
and titles of the proposed trainees (the "Training Request"). Based upon the
Training Request, the party providing the training shall provide the requesting
party a written estimate of any costs, fees or expenses that will be charged for
such training. In the event that the requesting party proceeds with the
training, then the party providing the training shall include all such costs,
fees and expenses on the Invoice to the requesting party in accordance with
Section 3.3, provided that the same is identified expressly on the relevant
Invoice.
5. DOCUMENTARY ORDER OF PRECEDENCE
In the event that any of the documents referenced herein in connection
with any Transitional Services are inconsistent with this Agreement or any other
document referenced herein, then the order of precedence for such documents in
connection with such Transitional Services shall be as follows: (a) the Purchase
Agreement; (b) this Agreement; (c) the applicable Transitional Services
Agreement; and then (d) the applicable Invoice.
6. CONFIDENTIALITY AND ACCESS TO FACILITIES
6.1 PROPRIETARY INFORMATION. Each party agrees and acknowledges that,
during the term of this Agreement, the other party may have access to, or a
party (the "Disclosing Party") may be required to disclose to the other party
(the "Receiving Party"), certain confidential information, data, records, files,
archives and other proprietary information, whether oral or written, concerning,
among other things, third party materials or the Disclosing Party's inventions,
know-how, customer lists, pricing, patent and trade secret information
(including methods or concepts utilized therein), software, distribution and
general business information (the "Proprietary Information"). Each party further
agrees and acknowledges that all Propriety Information of the Disclosing Party
or its Affiliates, customers, suppliers or subcontractors generated, produced or
stored by Service Provider or any third party in connection with the provision
of Transitional Services or the performance of this Agreement shall be the
Proprietary Information of the Disclosing Party, and that all information
relating to the same and other information related to the historical and current
operation of the Disclosing Party is the Proprietary Information of the
Disclosing Party. Proprietary Information shall remain the sole property of the
Disclosing Party and, except as expressly provided pursuant to a license granted
under a Transitional Services Agreement, the other party shall have no interest
in or rights with respect to such Proprietary Information.
6.2 PROTECTION. During the term of this Agreement, and for a period of
five years after the date upon which the last Transitional Services Agreement
terminates, each party agrees to protect the confidentiality of the other
party's Proprietary Information with the same degree of
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care that it utilizes with respect to its own similar confidential and
proprietary information, and no less than reasonable care, including agreeing:
(a) Not to disclose or permit the disclosure, copy, display,
loan, publication, transfer of possession (whether by sale, exchange, gift,
operation of law or otherwise) or other dissemination of or access to the
Proprietary Information, in whole or in part, in any form whatsoever, to or by
any third party without the prior written consent of the Disclosing Party,
except that such disclosure or access shall be permitted to an employee or
subcontractor requiring access to the Proprietary Information in the course of
his or her employment in connection with the subject matter of this Agreement
who has signed an agreement obligating such employee or subcontractor to
maintain the confidentiality of the Proprietary Information in accordance with
the terms of this Agreement.
(b) To notify the Disclosing Party promptly and in writing of
the circumstances surrounding any suspected possession, use, disclosure or
knowledge of the Proprietary Information or any part thereof at any location or
by any person or entity other than those authorized by this Agreement and to
take further steps as may reasonably be requested by the Disclosing Party to
remedy any such possession, use or disclosure. Each party is permitted to make
reasonable inquiries concerning the other party's compliance with the provisions
of this Section 6.
(c) Notwithstanding the foregoing, Proprietary Information
which constitutes computer source code shall be kept confidential indefinitely.
6.3 USE. A party shall not use, nor permit the use of, a Disclosing
Party's Proprietary Information for any purpose other than in the performance of
its duties hereunder or as otherwise expressly permitted hereunder.
6.4 EXCEPTIONS. Nothing in this Section 6 shall restrict the parties
with respect to confidential information, data, records, files, archives or
other proprietary information, whether or not identical or similar to that
contained in the Proprietary Information, if such confidential information,
data, records, files, archives or other proprietary information: (a) is
independently developed by the Receiving Party without reference to the
Disclosing Party's Proprietary Information; (b) is or becomes public or
available to the general public other than through any act or default of the
Receiving Party; (c) is received by the Receiving Party from a third party under
no obligation to keep such information confidential; or (d) is required by law
to be disclosed; provided, however, that as soon as a reasonably practicable
after receiving notice of any such required disclosure and to the extent that it
may legally do so, the Receiving Party advises the Disclosing Party of the same,
and, prior to making any such disclosure, takes all reasonable actions to assure
the confidential handling of the Proprietary Information, or takes such other
action as it deems appropriate to protect the Propriety Information.
6.5 ACCESS TO FACILITIES. When one party (or its employees, Affiliates
or authorized subcontractors) (the "Visiting Party") is provided access to the
other party's (the "Visited Party's") premises, the Visiting Party shall cause
its personnel at such premises to comply with the Visited Party's: (a) safety,
security and other rules applicable to those working at the premises and (b)
policies concerning access to and security of any premises or computer system
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to which such Visiting Party may have access. Visiting Party's personnel shall
use the Visited Party's premises and any equipment, networks, hardware and
software provided by the Visited Party solely for purposes directly related to
the Transitional Services or training, as applicable, and shall cease use of
such items immediately upon completion or termination of the corresponding
Transitional Services Agreement. Visiting Party's personnel shall not use the
Visited Party's premises at times other than the Visited Party's normal business
hours without the prior written consent of an authorized representative of the
Visited Party. Visiting Party shall treat all passwords, network access
information and information concerning the Visited Party's security systems
(physical, electronic and otherwise) as part of the Visited Party's Proprietary
Information.
6.6 RESIDUAL KNOWLEDGE. Nothing contained in this Agreement shall
restrict a party from the use of any intangible information, ideas, concepts or
techniques of a general nature relating to the Services and retained in the
unaided memory of an employee of such party, provided that in doing so such
party does not breach its obligations hereunder of non-disclosure and further
provided that this right does not represent a license under any patents,
copyrights or other intellectual property rights of the other party.
7. INDEMNIFICATION
7.1 INDEMNIFICATION BY GETRONICS.
(a) Getronics shall indemnify, defend and hold the Company and
its Affiliates harmless from and against any and all losses, liabilities,
damages, costs and expenses (including interest, penalties, fines and reasonable
attorneys' fees) (collectively, "Losses") arising from third party claims in
connection with: (i) the gross negligence or intentional misconduct of Getronics
in the performance of, or the failure to perform, any Transitional Services by
Getronics as Service Provider; (ii) the material breach by Getronics of any of
its obligations hereunder; or (iii) the infringement or misappropriation of any
third party trade secret, patent, trademark or copyright in the performance of
any Transitional Services by Getronics as Service Provider.
(b) If notified promptly in writing of any action brought
against the Company or its Affiliates based on a claim described in Section
7.1(a), Getronics shall defend such action at its expense and pay all costs,
damages and settlements finally awarded in such action or settlement which are
attributable to such claim, except that Getronics shall, upon the Company's
request, not assume control of, or if it shall have previously assumed control
of, transfer to the Company control of: (i) any claim brought by a Governmental
Authority in which such Governmental Authority alleges in writing that the
Company or any of its Affiliates committed a criminal offense, or (ii) any claim
in which injunctive or equitable relief which could reasonably be expected to
have a material adverse effect on the business of the Company or any of its
Affiliates is sought. Except as provided for in the immediately preceding
sentence, Getronics shall have sole control of the defense of any such action
and all negotiations for its settlement or compromise, provided such settlement
or compromise includes an unconditional release of the Company and its
Affiliates from all liability with respect to such claim in form and substance
reasonably satisfactory to the Company, and provided that such settlement or
compromise does not adversely affect the ability of the Company and its
Affiliates to own and operate the Company business. The Company shall have the
right to be informed and consulted with respect
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to the negotiation, settlement or defense of such claim. The Company shall
reasonably cooperate with Getronics in the defense of such claim, and may be
represented, at the Company's expense, by counsel of the Company's selection.
7.2 INDEMNIFICATION BY THE COMPANY.
(a) The Company shall indemnify, defend and hold Getronics and
its Affiliates harmless from and against any and all Losses arising from third
party claims in connection with: (i) the gross negligence or intentional
misconduct of the Company in the performance of, or the failure to perform, any
Transitional Services by the Company as Service Provider; (ii) the material
breach by the Company of any of its obligations hereunder; or (iii) the
infringement or misappropriation of any third party trade secret, patent,
trademark or copyright in the performance of any Transitional Services by the
Company as Service Provider.
(b) If notified promptly in writing of any action brought
against Getronics based on a claim described in Section 7.2(a) above, the
Company shall defend such action at its expense and pay all costs, damages and
settlements finally awarded in such action or settlement which are attributable
to such claim, except that the Company shall, upon Getronics' request, not
assume control of, or if it shall have previously assumed control of, transfer
to Getronics control of: (i) any claim brought by a Governmental Authority in
which such Governmental Authority alleges in writing that Getronics or any of
its Affiliates committed a criminal offense or, (ii) any claim in which
injunctive or equitable relief which could reasonably be expected to have a
material adverse effect on the business of Getronics or any of its Affiliates is
sought. Except as provided for in the immediately preceding sentence, the
Company shall have sole control of the defense of any such action and all
negotiations for its settlement or compromise, provided such settlement or
compromise includes an unconditional release of Getronics and its Affiliates
from all liability with respect to such claim in form and substance reasonably
satisfactory to Getronics, and provided that such settlement or compromise does
not adversely affect the ability of Getronics and its Affiliates to own and
operate the Getronics business. Getronics shall have the right to be informed
and consulted with respect to the negotiation, settlement or defense of such
claim. Getronics shall reasonably cooperate with the Company in the defense of
such claim, and may be represented, at Getronics' expense, by counsel of
Getronics' selection.
7.3 INJUNCTIVE RELIEF. Should a party's access to Transitional Services
be restricted, encumbered or enjoined by reason of any actual or alleged
infringement or misappropriation of a third party's rights or otherwise, Service
Provider, at no cost to Recipient Party, promptly will: (a) obtain for Recipient
Party the right to continue to use the affected Transitional Services; (b)
modify the affected Transitional Services so as to remove the cause of the
claim, action or suit (provided that Service Provider's modification will not
affect Recipient Party's intended use of the Transitional Services); or (c)
replace the Transitional Services with non-infringing services having, in
Service Provider's reasonable judgment, at least the same functionality or
effect, which service then will be considered Transitional Services hereunder
and subject to the provisions of this Agreement. If options (a), (b) or (c) are
not reasonably commercially available to Service Provider, or if Service
Provider is not able to accomplish option (a), (b) or (c) to Recipient Party's
reasonable satisfaction within 30 days from the date that Recipient Party's use
of the Transitional Services is restricted, encumbered or enjoined, then either
party may terminate the relevant Transitional Services Agreement upon written
notice to the other party and
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Recipient Party may require Service Provider to refund any fees already paid for
the affected Transitional Services, as set forth in the relevant Transitional
Services Agreement.
7.4 SURVIVAL. All claims by either party for indemnification under
Section 7.1 and 7.2 shall be brought within one year after the event giving rise
to the right of indemnification or shall be deemed waived.
8. TERM AND TERMINATION
8.1 TRANSITIONAL SERVICES AGREEMENTS.
(a) Unless earlier terminated in accordance with the terms of
this Agreement or the Transitional Services Agreement, each Transitional
Services Agreement shall expire on the date for expiration for such Transitional
Services as set forth in the relevant Transitional Services Agreement (the
"Expiration Date"). Transitional Services may be extended beyond the Expiration
Date if: (i) one party notifies the other in writing no less than 30 days before
the Expiration Date that it desires to extend the relevant service period; and
(ii) no later than 10 days prior to the Expiration Date the parties reach
mutual, written agreement as to the terms and conditions of the services to be
provided and all related issues, including term and pricing.
(b) Upon termination or expiration of a Transitional Services
Agreement, Service Provider of such Transitional Services shall have no further
obligation to provide such Transitional Services. Termination or expiration of
any Transitional Services Agreement for any reason shall not relieve any party
of any obligations accruing thereunder prior to such termination or expiration.
The termination or expiration of any Transitional Services Agreement shall not
affect the operation or legal effect of this Agreement or any other Transitional
Services Agreement.
8.2 MASTER AGREEMENT.
(a) Unless earlier terminated in accordance with Section
8.2(b), this Agreement shall be in effect from the date hereof until the latest
expiration or termination date of the Transitional Services Agreements.
(b) This Agreement may be terminated by either party, in whole
or in part with respect to one or more Transitional Services Agreements, if the
other party (the "Defaulting Party") has materially breached its obligations
under this Agreement, including any Transitional Services Agreement, and such
Defaulting Party has not cured such default within 30 days following the date on
which the other party (the "Notifying Party") has given written notice
specifying the facts constituting the default. Notwithstanding the foregoing
sentence, this Agreement shall not be terminated due to a default by the
Defaulting Party if such default is directly attributable to a breach of this
Agreement by the Notifying Party.
(c) Upon termination or expiration of this Agreement, in whole
or in part, for whatever reason, Service Provider immediately shall cease all
work with regard to the terminated or expired Transitional Services and each
party promptly shall deliver to the other party all materials and information,
including any Propriety Information, supplied by the other party in
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connection with the such terminated Transitional Services.
(d) All provisions which are intended, either expressly or by
their nature, to survive termination or expiration of this Agreement or any
Transitional Services Agreement shall survive any termination or expiration of
this Agreement or any Transitional Services Agreement.
9. COMPLIANCE WITH LAWS
Each party shall comply with all laws, legislation, rules, regulations
and governmental requirements applicable to its performance of its obligations
hereunder.
10. LIMITATION OF LIABILITY
10.1 NO CONSEQUENTIAL DAMAGES. IN NO EVENT SHALL EITHER PARTY, ITS
AFFILIATES, SUBCONTRACTORS OR ITS OR THEIR AGENTS, OFFICERS OR EMPLOYEES BE
LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES
IN CONNECTION WITH ITS PERFORMANCE UNDER THIS AGREEMENT OR ANY BREACH OF ITS
OBLIGATIONS HEREUNDER OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES.
10.2 LIMITATION OF LIABILITY. IN NO EVENT SHALL EITHER PARTY, ITS
AFFILIATES, SUBCONTRACTORS OR ITS OR THEIR AGENTS, OFFICERS OR EMPLOYEES BE
LIABLE FOR ANY DIRECT DAMAGES IN CONNECTION WITH ITS PERFORMANCE UNDER THIS
AGREEMENT OR ANY BREACH OF ITS OBLIGATIONS HEREUNDER OR OTHERWISE THAT EXCEED
THE SUM OF THE AMOUNT PAID AND THE AMOUNT PAYABLE FOR THE TRANSITIONAL SERVICES
THAT RELATE TO THE SUBJECT PERFORMANCE OR BREACH. THE PARTIES ACKNOWLEDGE THAT
THE CHARGES FOR THE TRANSITIONAL SERVICES AND RESOURCES PROVIDED HEREUNDER HAVE
BEEN ESTABLISHED IN CONTEMPLATION OF THE FOREGOING ALLOCATION OF RISKS.
10.3 EXCLUSIONS FROM LIMITATION. No limitation as to direct damages
arising from any claim relating to personal injury (including death), damage to
tangible property or damage resulting from the negligence or willful misconduct
of a party is intended hereby. In addition, nothing in this Section 10 shall
limit a party's indemnification obligations under Section 7.
11. LIMITED WARRANTIES
11.1 SERVICES WARRANTY. Service Provider represents, warrants and
covenants that performance of the Transitional Services will be accomplished in
a timely, professional and workmanlike manner pursuant to the requirements and
specifications set forth in this Agreement and the relevant Transitional
Services Agreement. A party's sole and exclusive remedy with respect to a breach
of the foregoing warranty is the prompt redelivery by Service Provider of the
subject Transitional Services, unless otherwise expressly provided in this
Agreement. Neither party shall make any warranty commitment, whether written or
oral, on the other party's behalf or in connection with the Transitional
Services provided by the other party.
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11.2 DISCLAIMER OF WARRANTIES. UNLESS OTHERWISE EXPRESSLY PROVIDED
HEREIN OR IN ANY TRANSITIONAL SERVICES AGREEMENT, THE PARTIES EXPRESSLY DISCLAIM
ALL EXPRESS OR IMPLIED WARRANTIES ARISING UNDER ANY CONTRACT OR APPLICABLE LAW,
INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE.
12. GENERAL
12.1 APPLICABLE LAW; JURISDICTION; DISPUTE RESOLUTION. This Agreement
and each of the Transitional Services Agreements, including any dispute or
controversy arising out of or related to this Agreement or any of the
Transitional Services Agreements or the breach hereof or thereof, shall be
subject to, governed by, and construed in accordance with, the substantive and
procedural laws of the State of Delaware, without reference to its principles of
conflict of laws. Any such dispute or controversy which remains unresolved for
20 business days first shall be referred to the chief executive officer of the
Company and the officer designated by Getronics to resolve disputes pursuant to
this Section 12.1. If these parties are unable to resolve the dispute within 20
days, then the parties may initiate legal proceedings to resolve their dispute.
Each period specified in this Section 12.1 for resolution shall commence upon
receipt of written notice sent by one party to the other by certified mail,
return receipt requested, setting forth the nature of the dispute.
12.2 FORCE MAJEURE. Neither party shall be liable in any respect for
failures to perform hereunder directly resulting from acts of God, acts of
terrorism, acts of civil or military authority, fires, floods, epidemics,
quarantine restrictions, armed hostilities, riots or other unforeseeable causes
beyond the reasonable control and without the fault or negligence of the party
so affected.
12.3 ASSIGNMENT. Without limiting the provisions of Section 2.6,
neither party shall assign any of its rights or obligations hereunder, whether
by agreement or application of law or otherwise, without the prior written
consent of the other party, except that Getronics shall be permitted to assign
its rights and obligations to an Affiliate. Notwithstanding any other provision
hereof to the contrary, the Company may assign any or all of its rights
hereunder to any of its lenders as collateral security. Any assignment in
violation of this Section 12.3 shall be deemed void and of no effect. A
reference to any party to this Agreement or any other agreement or document
shall include such party's permitted successors and permitted assigns.
12.4 RELATIONSHIP OF THE PARTIES. The parties shall for all purposes be
considered independent contractors with respect to each other, and neither shall
be considered an employee, employer, agent, principal or partner of the other.
12.5 NO SOLICITATION OR HIRING OF EMPLOYEES. Except as provided by law,
or unless otherwise agreed in writing by the parties, for a period of one year
after the expiration or termination of a Transitional Services Agreement,
neither party shall hire or solicit for hire any employee of the other party who
had been engaged directly in the performance of such Transitional Services.
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12.6 ENTIRE AGREEMENT; AMENDMENT. This Agreement, the Purchase
Agreement and the Transitional Services Agreements constitute the entire
agreement between Getronics and the Company with respect to the subject matter
hereof. No oral statement of any Person shall in any manner modify or otherwise
affect the terms and provisions of this Agreement or any of the Transitional
Services Agreements. Neither this Agreement nor any of the Transitional Services
Agreements may be amended, altered or changed except by a written agreement
signed by each of the parties hereto.
12.7 NO WAIVER. No delay or omission on the part of either party to
this Agreement in requiring performance by the other party or in exercising any
right hereunder shall operate as a waiver of any provision hereof or of any
right or rights hereunder; and the waiver, omission or delay in requiring
performance or exercising any right hereunder on any one occasion shall not be
construed as a bar to or waiver of such performance or right, or of any right or
remedy under this Agreement, on any future occasion.
12.8 RIGHTS AND REMEDIES. All rights and remedies of either party
hereunder shall be cumulative and may be exercised singularly or concurrently.
12.9 NOTICES. Any notice, request, instruction or other document to be
given hereunder by one party to the other shall be in writing and shall be
deemed given when delivered personally, upon receipt of transmission
confirmation (with a confirming copy sent by overnight courier) if sent by
facsimile or like transmission and on the next business day when sent by Federal
Express, United Parcel Service, Express Mail or other reputable overnight
courier, as follows:
If to Getronics:
▇▇▇▇▇ ▇▇▇▇▇
Country Manager, North America
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
WITH A COPY TO:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Vice President and General Counsel
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
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If to the Company:
DigitalNet, Inc.
▇▇▇▇-▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
WITH COPIES TO:
GTCR ▇▇▇▇▇▇ ▇▇▇▇▇▇, LLC
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
and
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
or to such other persons or addresses as may be designated in writing by the
party to receive such notice. Nothing in this Section 12.9 shall be deemed to
constitute consent to the manner and address for service of process in
connection with any legal proceeding (including Litigation arising out of or in
connection with this Agreement), which service shall be effected as required by
applicable Law.
12.10 SECTION HEADINGS. Section headings are for descriptive purposes
only and shall not control or alter the meaning of this Agreement.
12.11 INTERPRETATION. Whenever the words "include," "includes" or
"including" are used in this Agreement they shall be deemed to be followed by
the words "without limitation."
12.12 SEVERABILITY. If any provision of this Agreement shall for any
reason be held illegal or unenforceable, such provision shall be deemed
separable from the remaining provisions of this Agreement and shall in no way
affect or impair the validity or enforceability of the remaining provisions of
this Agreement.
12.13 JOINT WORK PRODUCT. The parties have participated jointly in the
negotiation and drafting of this Agreement. In the event an ambiguity or
question of intent or interpretation arises, this Agreement shall be construed
as if drafted jointly by the parties, and no presumption
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or burden of proof shall arise favoring or disfavoring any party by virtue of
the authorship of any provisions of this Agreement.
12.14 COUNTERPARTS. This Agreement and each of the Transitional
Services Agreements may be executed in one or more counterparts, each of which
shall be deemed an original but all of which together shall constitute one and
the same instrument.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, Getronics and the Company have duly executed this
Master Agreement for Transitional Services as of the day and year first above
written.
GETRONICSWANG CO. LLC GETRONICS GOVERNMENT
SOLUTIONS, L.L.C.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
------------------------- ---------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Vice President Corporate Title: Senior Vice President
Development & Strategic Initiatives
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